People v. Morelos

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
VALDAMIR FRED MORELOS,
Defendant and Appellant.
S051968
Santa Clara County Superior Court
169362
August 11, 2022
Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Kruger,
Jenkins, and Guerrero concurred.
Justice Liu filed a dissenting opinion.
PEOPLE v. MORELOS
S051968
Opinion of the Court by Groban, J.
Following a bench trial, Valdamir Fred Morelos was
convicted of Kurt Anderson’s first degree murder. (Pen. Code,1
§ 187.) The trial court found true that Morelos used a firearm
in the commission of the murder (§§ 12022.5, subd. (a), 1203.06)
and that three special circumstance allegations applied: murder
in the commission or attempted commission of robbery (§ 190.2,
subd. (a)(17)(A)); murder in the commission or attempted
commission of specified sexual acts (sodomy and oral copulation)
(§ 190.2, subd. (a)(7)(D), (F)); and intentional murder involving
the infliction of torture (§ 190.2, subd. (a)(18)). The trial court
further found true two prior serious felony enhancements (§ 667,
subd. (a)) and two prior prison term enhancements (§ 667.5).
After a penalty phase bench trial, the trial court returned
a verdict of death, and imposed that sentence. The court also
imposed a consecutive prison term of 15 years, consisting of five
years each for the firearm and two prior serious felony
enhancements. The sentences for the prior prison terms under
section 667.5, subdivisions (a) (three-year enhancement) and (b)
(one-year enhancement) were stayed pursuant to section 654.
This appeal is automatic. (§ 1239, subd. (b).)
1
All further undesignated statutory references are to the
Penal Code.
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Opinion of the Court by Groban, J.
We affirm the trial court’s guilt determination, except as
modified to strike the prior prison term enhancement under
section 667.5, subdivision (b). We affirm the judgment of death.
The prison sentence is vacated, and the matter is remanded for
the trial court to consider whether to exercise its newly
conferred discretion under Senate Bill Nos. 620 (2017–2018 Reg.
Sess.) and 1393 (2017–2018 Reg. Sess.) to strike the firearm and
prior serious felony enhancements, respectively.
I. FACTS AND PROCEDURAL BACKGROUND
A. Guilt Phase Evidence
Morelos waived jury at both the guilt and penalty phases.
The guilt phase of the bench trial commenced on January 3,
1996. The prosecution presented evidence that Morelos forcibly
sodomized, tortured, and murdered Anderson. Morelos,
representing himself, testified at the guilt phase.
Neal Picklesimer, Morelos’s former roommate, testified
that, on October 17, 1992, he picked Morelos up from the Arena
Hotel in San Jose, where Morelos was staying. The two went to
several gay bars in San Jose: Renegades, Gregg’s, Bucks, and
Tinker’s Damn. About an hour before closing time, the two left
Tinker’s Damn and went back to Renegades. Before Picklesimer
left the bar, Morelos and Picklesimer made plans to get together
the next day to see the air show at Moffett Field. On October
18, 1992, Picklesimer and Morelos attended the air show and
Picklesimer dropped Morelos back off at the Arena Hotel
between 10:00 p.m. and 11:00 p.m.
Morelos testified that, after Picklesimer dropped him off
at the Arena Hotel, he went to Renegades with the goal of
robbing someone to obtain transportation and money. He was
armed with two firearms, a .45 and a .38, as well as a knife.
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Opinion of the Court by Groban, J.
Morelos met Anderson at Renegades and told Anderson he
wanted to show him something. Morelos took Anderson to an
enclosed area, showed him the guns, and told Anderson to leave
with him. Morelos testified that he intended to get as much
money as he could out of Anderson and stated that Anderson
owed him about $40. Morelos had Anderson drive him to the
Arena Hotel, where he then took the keys to Anderson’s Jeep
and led Anderson back to his room. Morelos instructed
Anderson to take his clothes off, then gagged and tied Anderson
up using the sheets and towels from the hotel room. Morelos
took Anderson’s wallet, watch, and ATM card. Then Morelos
sexually assaulted Anderson for approximately 45 minutes,
penetrating his anus and mouth and forcing Anderson to orally
copulate him. Morelos testified that he tied Anderson’s hands
behind his back and kept a knife drawn against Anderson in
case Anderson tried to assault him.
Several hours later, Morelos hog-tied Anderson’s feet and
hands together and then used a strip of cloth to tie Anderson’s
feet to his neck. Morelos tied another piece of cloth around
Anderson’s neck and secured that to the ceiling fan. Then
Morelos tied strips of cloth around Anderson’s testicles and tied
them to the ceiling fan in order to inflict extreme pain to force
Anderson to give him the correct personal identification number
for his ATM card. After getting Anderson’s personal
identification number, Morelos gagged and blindfolded
Anderson and left the hotel room.
Morelos testified that he briefly left Anderson in the hotel
room to access a nearby ATM machine. Although Anderson had
two accounts, a checking and a savings account, both were low
on funds and Morelos ultimately did not bother wasting his time
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Opinion of the Court by Groban, J.
to get money out of the accounts. He was extremely angry when
he found out Anderson did not have any money.
Morelos went back to the hotel room, took the gag and
blindfold off Anderson, then yanked the bindings on Anderson’s
neck and testicles while questioning and hitting Anderson.
Anderson said the money in his bank accounts must have gone
to rent through automatic transfer. Morelos testified that he
was then done with Anderson, so at around 4:00 a.m. on October
19th, Morelos dressed Anderson in a pair of jeans and a T-shirt,
walked him outside, and then down to the Jeep. Armed with the
three guns and extra ammunition, Morelos drove Anderson up
to Mount Hamilton Road. Morelos told Anderson he was going
to tie Anderson to a tree and leave him there. When Morelos
found a bushy, camouflaged area, he directed Anderson in that
direction then told him to stop. Morelos explained to Anderson
that he was not going to tie Anderson to a tree so that Anderson
would believe he was going to be set free. Then Morelos shot
Anderson in the head. Morelos testified that the gunshot did
not kill Anderson; he fell down but was still alive. So Morelos
shot him again, but the second shot did not kill Anderson.
Morelos left Anderson there, reasoning that he would die
eventually.
Morelos’s sister testified that, at approximately 6:00 a.m.
on October 19, 1992, Morelos drove to her house in a brown Jeep
and told her that he had shot and killed someone. He told her
that he had been in a motel with a man, tied him up, tied
something around the man’s genitals, and tied him to a ceiling
fan. At first she did not believe him but then he showed her a
handgun. Morelos told his sister that he had two guns, money,
and the Jeep belonging to the man he killed. Morelos also told
her that he shot the man behind the head somewhere up in the
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Opinion of the Court by Groban, J.
hills where they would never find the body. His sister, a
probationer, told Morelos that she was expecting a visit from her
probation officer and instructed him to leave.
According to Picklesimer’s testimony, Morelos then called
Picklesimer and asked if he could stay with Picklesimer for a
while and Picklesimer agreed. When Picklesimer got home that
night, Morelos was spray painting a Jeep black. Morelos told
Picklesimer that he had picked up someone at a bar the night
before, went back to his hotel room and had sex with him.
Morelos described tying this person up, tying him to a ceiling
fan, taking his ATM card and trying to get money from the ATM
card. Morelos said that early the next morning he untied the
man from the ropes and tied his hands behind his back, then
took him in the Jeep up into the hills. Morelos told Picklesimer
that the man was crying and pleading for his life and that
Morelos shot him in the head. The man fell to the ground but
was still alive, so Morelos shot him again. Morelos showed
Picklesimer three guns he had in his possession: a .45 automatic
pistol, a .357 revolver, and a small revolver. He also showed
Picklesimer a Halston watch that Morelos said belonged to the
man.
The next morning, on October 20, 1992, Picklesimer called
Menlo Park Police to report what Morelos had told him. An
officer spoke with Picklesimer and then told him that the Santa
Clara Police Department had jurisdiction. Picklesimer spoke
with Sergeant Zaragoza at the Santa Clara Police Department
and did a drive by of his home with officers. Officers waited
outside Picklesimer’s house and Morelos was arrested when he
returned to Picklesimer’s home in the Jeep. When officers
searched Morelos at booking they found an ATM card with the
name of Kurt Anderson.
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Before interviewing Morelos, law enforcement officers
informed him of his rights under Miranda v. Arizona (1966)
384 U.S. 436. Morelos waived his rights and signed a Miranda
waiver. His confession was audio and video recorded. Portions
of the videotaped confession and the audio tapes of Morelos’s
interview were played at trial. Morelos directed officers to the
site of the murder, approximately six miles southeast of Alum
Rock Avenue on Mount Hamilton Road. There, officers
recovered Anderson’s body. Officers found .45-caliber cartridge
casings and slugs near Anderson’s body.
Forensic pathologist Dr. Parviz Pakdaman, who
performed the autopsy on Anderson, testified that there was
bruising on the shaft of Anderson’s penis and on his scrotum.
He further testified that a hard projectile entered Anderson’s
head and caused massive destruction to his brain. Soot and
powder surrounded the entrance wound, indicating that the
projectile was fired from a very close range, less than one inch
from the skull.
Morelos testified as to his prior convictions. He was
convicted in 1988 of robbery (§ 211) and first degree burglary
(§§ 459, 460.1), for which he was sentenced to five years four
months in prison. Morelos was also convicted of assault with a
deadly weapon and infliction of great bodily injury for a stabbing
he committed in the California Youth Authority (CYA) and was
sentenced to three years in prison.
The trial court found Morelos guilty of the first degree
murder of Anderson, and found true the personal use of a
firearm allegation. The court also found true the special
circumstance, prior conviction, and prior prison term
allegations.
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B. Penalty Phase Evidence
The penalty phase bench trial commenced on January 10,
1996.
The People called several witnesses to testify. John E.
testified regarding an incident with Morelos that occurred on or
about March 9, 1988. John E. and Morelos had been in a
relationship and living together and Morelos wanted another
man to move into their trailer. John E. refused and Morelos
assaulted John E., hitting him in the face repeatedly. John E.
required over 300 stitches for the injuries Morelos caused.
Morelos stole money from John E. and the friend John E. was
staying with, and also stole John E.’s television. John E.
reported the incident to the police and Morelos was eventually
convicted of robbery and first degree burglary.
Thomas S. testified that Morelos hit him over the head
with a baseball bat, causing a concussion and eight lacerations
that each required six to 14 stitches. Harold T. also testified
that Morelos picked up the bat and hit Thomas S., splitting his
head open. The assault was not prosecuted.
Timothy F. testified that Morelos offered to orally copulate
him and, when he refused, Morelos threatened him with a knife
and told him that he had “raped guys before” and would do it
again.
R.G., a San Jose Police Sergeant, testified that Morelos
shot at him and his partner in 1977, when Morelos was about 16
years old.
Robert L. testified that he rented a room from Morelos’s
mother in 1992. Morelos forcibly sodomized Robert L. and did
so with several guns within his reach.
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Kenneth M. testified that Morelos nearly hit him while
driving a getaway vehicle for a woman who had shoplifted from
the store where Kenneth M. worked as security. Morelos drove
the vehicle directly towards Kenneth M. and attempted to run
him down. Had Kenneth M. not jumped behind a pole, Morelos
would have hit him with the vehicle.
James C. testified that Morelos sexually assaulted him in
1992. Morelos stripped him of his clothes and locked him in his
bedroom for six hours. Morelos hit James C. in the face and
twisted his arm behind his back, threatening to break it.
Morelos forcibly sodomized James C. and forced James C. to
orally copulate him. Morelos later went to James C.’s home and
demanded that he return a clock. Morelos repeatedly
threatened to kill James C.
Morelos only called one witness to testify before his own
testimony. He recalled John E. to the stand, for whom he had
previously reserved cross-examination. Morelos elicited
testimony about an incident between himself and a person
nicknamed “Danger” that occurred in the garage at John E.’s
grandmother’s house. John E. witnessed Morelos and Danger
sparring in the garage before leaving the two alone. The next
day, Morelos told John E. he had forced himself on Danger. John
E. also confirmed that his trailer was broken into after the
assault by Morelos about which he had previously testified.
John E. also remembered Morelos selling drugs at the Arena
Hotel.
Morelos testified and provided a narrative history of his
life, describing running away from home as a child, the marital
problems between his mother and her husband, his father’s
drinking problems, and his time in juvenile hall, on juvenile
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probation, and at the CYA. Morelos further testified to
assaulting a former boyfriend, Anthony Z., committing robberies
and armed robberies around Sacramento, and sexually
assaulting other inmates at the CYA. Although it went beyond
the scope of his direct testimony, on cross-examination Morelos
testified about forcibly sodomizing a man in Oregon while armed
with a .38-caliber gun. He further testified that he killed two
people in Oregon in preparation for the murders he planned to
commit in San Jose. The court excluded the alleged Oregon
murders and all evidence upon which there was no evidence
presented by the actual victims of the particular offenses.
Weighing the relevant factors, the court concluded the
factors in aggravation substantially outweighed the factors in
mitigation. Based on the totality of the evidence, the facts
presented, and the testimony of the witnesses, the court
determined the appropriate penalty was death. The court also
sentenced Morelos to a consecutive prison term of 15 years,
consisting of five years for each of his prior serious felony
enhancements and five years for the firearm enhancement. The
court stayed the punishment for his prison priors pursuant to
section 654.
II. DISCUSSION
A. Defendant’s Exercise of his Sixth Amendment
Right To Represent Himself at the Guilt and
Penalty Phases
Morelos contends the trial court erred when it granted his
motion to represent himself at his capital trial. Morelos claims
the right to self-representation recognized in Faretta v.
California (1975) 422 U.S. 806 (Faretta) does not apply in
capital cases. He further asserts that the trial court erred by
failing to revoke his pro se status at the penalty phase, and that
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the trial court’s failure to provide him counsel violated his Sixth
and Eighth Amendment rights under the federal Constitution
such that his conviction, special circumstance findings, and
death sentence must be reversed.
1. Background
The Santa Clara Public Defender’s Office was appointed
to represent Morelos on October 23, 1992. The first amended
complaint charged Morelos in Count 1 with first degree murder
with malice aforethought and alleged Morelos personally used a
firearm in the commission of the crime. It also alleged three
special circumstances: murder in the course of a felony; murder
in the commission of sodomy and oral copulation; and
intentional murder involving the infliction of torture.
Represented by counsel, Morelos entered a plea of not guilty as
to all charges on November 30, 1992.
On January 16, 1993, Morelos requested a hearing under
People v. Marsden (1970) 2 Cal.3d 118 to replace his counsel.
The municipal court denied the request on February 22, 1993
after a hearing on the matter. On June 14, 1993, Morelos
requested a second Marsden hearing. This matter was
continued when the municipal court requested an evaluation of
Morelos to determine whether any evidence of mental
incompetence might lead to doubt pursuant to section 1368; the
court appointed Dr. Robert Burr to conduct the examination.
Based on Dr. Burr’s recommendation and the representations of
defense counsel, the municipal court declared a doubt as to
Morelos’s competency on August 23, 1993. The municipal court
suspended proceedings, appointed Dr. David Echeandia to
evaluate Morelos, and certified Morelos to superior court for a
hearing and examination to determine his competency. On
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September 22, 1993, the superior court found Morelos
competent and remanded him back to municipal court for
further hearings.
On October 4, 1993, Morelos notified the judge that he
wanted to withdraw his Marsden motion. Defense counsel
explained that she understood that Morelos wished to withdraw
the Marsden motion, waive his right to a preliminary hearing,
plead guilty, and proceed to the penalty phase. Defense counsel
explained that her “conflict” with Morelos came down to her
refusal to agree to Morelos entering a guilty plea. Counsel
argued that section 1018, which prohibits a capital defendant
from pleading guilty without the consent of counsel, precluded
Morelos from proceeding in the manner he desired. The court
encouraged the parties to brief the section 1018 issue and set
the matter for a hearing.
Defense counsel submitted a brief arguing that under
section 1018 and People v. Chadd (1981) 28 Cal.3d 739 (Chadd),
a defendant is barred from pleading guilty in a capital case
unless defense counsel agrees. After the court ruled that
Morelos could not plead guilty because his counsel would not
consent, Morelos agreed to proceed to a preliminary hearing.
Morelos was represented by counsel at the preliminary hearing,
which began on December 13, 1993.
On July 19, 1995, Morelos filed a petition to proceed in
propria persona, relying on Faretta, supra, 422 U.S. at page 806.
The trial court heard Morelos’s motion the same day. At the
hearing, Morelos affirmed that he wished to represent himself.
He affirmed that his motion was not due to any feeling that he
was being denied effective representation of counsel. And he
testified that he understood he had a right to a public and
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speedy trial and trial by jury. The trial court stated, “I’m sure
that everybody, including your lawyer, and I don’t know your
family or — certainly I’d like to add my strong urging to you to
utilize an attorney that has been appointed to represent you.
You’re not in a position where you’re finding any fault with the
particular attorney that you have, but for whatever value, again,
it is for me to state, the particular attorney you have is one that
is highly experienced, well-regarded, competent, and totally —
and I’m speaking for you now, Mr. Cavagnaro, I assume you’re
ready, willing, and able to represent the defendant in these
proceedings.” The court informed Morelos that he would not
receive any special consideration from the court, the judge
assigned to his case would treat him the same as an individual
represented by an attorney, and would hold him to the same
standard of conduct and the same knowledge of the law.
Morelos responded that he understood. Additionally, the court
emphasized that Morelos’s decision to represent himself “could
not be of a more serious nature” since the charges “are as serious
as they can be under the law.” In his petition to proceed in
propria persona, Morelos indicated his understanding that the
prosecutor was seeking the death penalty, and the minimum
sentence was life imprisonment without the possibility of parole.
Morelos confirmed his understanding and with that knowledge
still requested the court authorize him to represent himself.
The court then inquired whether the prosecution or
defense counsel had any evidence that Morelos lacked the
mental capacity to reach his decision freely and voluntarily. The
prosecutor responded he had no information from any source
that would indicate Morelos was not competent to represent
himself. And defense counsel cited the examinations conducted
by Drs. Echeandia and Burr assessing Morelos’s competency to
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stand trial. Both doctors opined that Morelos was competent,
and the trial court found him competent to stand trial. Having
met with Morelos on numerous occasions, defense counsel
testified that he believed Morelos was competent to stand trial
and to represent himself as required by Godinez v. Moran (1993)
509 U.S. 389.
The court then stated it had reviewed the applicable law
and determined there was no legal impediment to granting
Morelos pro per status. But the court stated: “I do this with
extreme reluctance, and I’m urging you and I’ll be happy, if you
wish me to do so, to continue this matter to allow you further
reflection on the issue, but it is most likely that once this
decision is made it may well be irrevocable absent some showing
that I’m not able to make at this time. But if you would like me
to continue this matter to allow you to think further on the
gravity of the act I’ll be happy to do so, or do you wish me to
grant this petition at this time?” Morelos responded: “Yes. I
wish you to grant it right now, please.” The prosecutor then
asked Morelos if he understood that by representing himself he
faced a “very strong likelihood of being convicted” and of facing
the death penalty. Morelos responded “yes” and confirmed that
he still desired to represent himself. The court then granted the
motion, finding that Morelos had made a sufficient showing that
he was competent to represent himself and aware of the
consequences of that decision.
2. Analysis
A defendant has a federal constitutional right to the
assistance of counsel during all critical stages of a criminal
prosecution. (Faretta, supra, 422 U.S. at p. 807; People v. Mickel
(2016) 2 Cal.5th 181, 205 (Mickel).) A defendant may
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nonetheless waive that right, as long as the waiver is timely and
valid. (Mickel, at p. 205; People v. Bloom (1989) 48 Cal.3d 1194,
1219–1220 (Bloom).) “The requirements for a valid waiver of
the right to counsel are (1) a determination that the accused is
competent to waive the right, i.e., he or she has the mental
capacity to understand the nature and object of the proceedings
against him or her; and (2) a finding that the waiver is knowing
and voluntary, i.e., the accused understands the significance
and consequences of the decision and makes it without
coercion.” (People v. Koontz (2002) 27 Cal.4th 1041, 1069–1070.)
We review a Faretta waiver de novo, examining the entire
record to determine the validity of a defendant’s waiver. (Id. at
p. 1070.)
Here, Morelos does not contend his request was untimely,
nor does he argue that the record demonstrates it was equivocal,
likely because the record shows Morelos explicitly affirmed that
he understood his constitutional rights and his request was of
his own volition. The record shows that the trial court made
clear to Morelos the risks of self-representation and Morelos —
fully apprised of the possible dangers — requested the court
grant his request immediately.
Rather, Morelos contends more broadly that the right to
self-representation must be limited to noncapital cases.
According to Morelos, the Eighth Amendment requires
substantive and procedural safeguards for capital defendants
and that assistance of counsel is one such procedural protection.
Permitting a capital defendant to represent himself or herself at
a capital trial, he asserts, presents too much of a risk that any
resulting death penalty will be imposed in an arbitrary and
capricious manner, rendering it unreliable. Morelos’s theory is
that the right to self-representation must yield in favor of the
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state’s interest in the integrity of a capital trial, so the trial court
erred by permitting him to represent himself at his capital trial.
Morelos further asserts that the trial court erred when it failed
to revoke his pro se status at the penalty phase.
We have previously contemplated and rejected similar
claims and we do so again here. As Morelos concedes, our case
law makes clear that Faretta applies in capital cases. We have
consistently held that the Sixth Amendment right to self-
representation is not limited to defense during the guilt phase
of trial, but also extends to the penalty phase of a capital trial.
(People v. Taylor (2009) 47 Cal.4th 850, 865; People v. Blair
(2005) 36 Cal.4th 686, 736–737 (Blair); People v. Bradford
(1997) 15 Cal.4th 1229, 1364; Bloom, supra, 48 Cal.3d at
pp. 1222–1224.) We decline Morelos’s invitation to reconsider
our case law on this point.
B. Defendant’s Waiver of Counsel in Violation of
Section 686.1
For similar reasons, Morelos asserts that his death verdict
must be reversed because section 686.1 requires that defendants
in capital cases be represented by counsel. Although Morelos
acknowledges our precedent that section 686.1 may only be
applied where Faretta is not implicated, he nonetheless argues
that we should “now give effect to section 686.1.”
Section 686.1 requires defendants in capital cases “be
represented by counsel during all stages of the preliminary and
trial proceedings.” Enacted by the Legislature in 1971, section
686.1 predates the United States Supreme Court’s 1975 decision
in Faretta. When the Legislature adopted section 686.1, it found
“that persons representing themselves cause unnecessary
delays in the trials of charges against them; that trials are
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extended by such persons representing themselves; and that
orderly trial procedures are disrupted. Self-representation
places a heavy burden upon the administration of criminal
justice without any advantages accruing to those persons who
desire to represent themselves.” (Stats. 1971, ch. 1800, § 6,
p. 3898; see People v. Johnson (2012) 53 Cal.4th 519, 526.) But
California law is subject to the United States Constitution and
the Sixth Amendment right to self-representation. We have
held that section 686.1 can only be given effect when it is not
inconsistent with the Sixth Amendment right to self-
representation established in Faretta. (Mickel, supra, 2 Cal.5th
at p. 209; People v. Burgener (2016) 1 Cal.5th 461, 474; Johnson,
at p. 526.) Morelos provides no persuasive reason to revisit our
prior holdings on this issue.
C. Denial of Defendant’s Request for Advisory
Counsel
Morelos claims the trial court erred in denying his request
for advisory counsel. Representing himself, Morelos filed an
application for “assistant counsel,” and now argues that the trial
court’s failure to exercise its discretion to grant or deny his
request was error. He asserts that a ruling to deny his request
for advisory counsel would have been an abuse of discretion, so
reversal is required, and his sentence must be set aside.
1. Background
After the trial court granted Morelos’s Faretta motion on
July 19, 1995, he represented himself in proceedings throughout
the subsequent five months. On December 8, 1995, Morelos filed
an application to appoint “assistant counsel” as a “second
attorney,” citing Keenan v. Superior Court (1982) 31 Cal.3d 424(Keenan) and section 987, subdivision (d). The court scheduled
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a hearing for December 20, 1995 to place the matter on the
record and permit Morelos to further amplify his request. At the
hearing, the court explained that it understood that Morelos’s
motion was seeking “what is commonly called Keenan counsel,”
which the court described as a form of “extra help” that “is not
in any way to be construed as co-counsel or standby counsel.”
Noting that Morelos had been represented by the public
defender’s office, the court further explained that “since they
apparently cannot claim a conflict of interest in this matter I am
bound by law only to, in effect, appoint them. I don’t have the
ability to appoint extra — some conflicts attorney or someone
else, so long as you’re legally able to be represented by the public
defender’s office.” The court then emphasized to Morelos “the
problem I want to make sure you understand is that the public
defender will not — I repeat not — agree to act in that capacity.”
Morelos responded that he wanted “to have somebody in the
capacity of adviser,” but “not really with the court, though. I’m
asking Judge Hastings for expert witnesses and psychologists
and psychiatrists and —.” The court interjected and explained:
“Well, you see, those applications are properly before Judge
Hastings, and this, of course, came to Judge Hastings and he
sent it back to me because I granted your Faretta motion, and
he thought that it was appropriate — and I agreed with him —
that I would hear this application and try to explain to you
what’s involved. Because Keenan counsel is not a synonym for
expert witnesses or investigation or anything of that nature. It
is solely limited — none of these are involved in your case.”
The court further explained, “[t]he Keenan counsel that
you’re requesting is simply not — it isn’t what you want. It isn’t
what you need. And probably I don’t have the ability to comply
with your request.” Morelos then stated, “I would like to have it
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withdrawn, then, withdraw the motion, if it’s —.” And the court
responded: “Well, I can do that, Mr. Morelos. I — again I’m
trying to plead with you, I guess, to take advantage of what I
believe to be fine representation that’s ready, willing, and able
to aid you in this.” Morelos represented himself at trial in both
the guilt and penalty phases.
2. Analysis
As an initial matter, it is important to clarify that neither
Keenan nor section 987, subdivision (d) is implicated here.
While Morelos cited both in his application to appoint “assistant
counsel” and the trial court referenced “Keenan counsel,”
Keenan is shorthand for section 987, subdivision (d)’s distinct
authorization to a court to “appoint an additional attorney as a
cocounsel upon a written request of the first attorney
appointed.” (Italics added; see Keenan, supra, 31 Cal.3d at
p. 430.) Since Morelos represented himself, he could not ask for
a second appointed attorney. (See People v. Moore (2011)
51 Cal.4th 1104, 1122 (Moore) [“section 987, subdivision (d) does
not apply when a defendant is proceeding in propria persona”];
ibid. [“A defendant proceeding in propria persona simply is not
‘the first attorney appointed’ ”].) Rather, Morelos asserts he was
entitled to advisory counsel. Advisory counsel, by contrast, is
available to assist a pro se defendant, but does not represent the
defendant. (People v. Lightsey (2012) 54 Cal.4th 668, 692–693.)
As we explained in People v. Crandell (1988) 46 Cal.3d
833, 861 (Crandell), “California courts have discretion to
appoint advisory counsel to assist an indigent defendant who
elects self-representation. (People v. Bigelow [(1984)] 37 Cal.3d
731, 742.) When a defendant requests appointment of advisory
counsel, a court’s failure to exercise its discretion is serious error
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and its denial of a request for advisory counsel in a capital case
may constitute an abuse of discretion. (Id. at p. 743.) We held
in Bigelow that failure to exercise discretion on a request for
advisory counsel in circumstances where a refusal to grant the
request would be an abuse of discretion requires automatic
reversal of a resulting conviction because of the inherent
difficulty in assessing prejudice. (Id. at pp. 744–746.)” If the
failure to appoint counsel would not be an abuse of discretion,
“the consequences of the error are properly assessed by
employing the Watson harmless error standard.
(People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)”
(Crandell, at pp. 864–865.) Applying Watson, we inquire
whether it is “reasonably probable that different verdicts would
have been returned had defendant received the assistance of
advisory counsel.” (Id. at p. 866.)
The Attorney General asserts that Morelos withdrew his
application for “assistant counsel.” But before Morelos
expressed his desire to withdraw the motion, the trial court
stated, “probably I don’t have the ability to comply with your
request.” We will assume, without deciding, that the trial court
had the authority to appoint the public defender as advisory
counsel notwithstanding the public defender’s apparent
representation that he would refuse such appointment. Further
assuming that the trial court erroneously failed to recognize its
discretion to grant Morelos’s request, per se reversal is
unwarranted because a refusal to grant Morelos’s request would
not have been an abuse of discretion, and any error was
harmless under Watson.
A defendant seeking appointment of advisory counsel
“must make a showing of need and the decision to grant or deny
the request rests in the sound discretion of the trial court.”
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(Crandell, supra, 46 Cal.3d at p. 862.) We determine “on a case-
by-case basis” whether denial of a request for advisory counsel
would have been an abuse of discretion. (Id. at p. 863) “ ‘[A]s
long as there exists a reasonable or even fairly debatable
justification, under the law, for the action taken, such action will
not be here set aside . . . . [Citations.]’ ” (Moore, supra,
51 Cal.4th at p. 1120, quoting People v. Clark (1992) 3 Cal.4th
41, 111.)
We have previously described the factors a court may
consider in exercising its discretion on a motion for advisory
counsel. These encompass defendant’s reasons for seeking
advisory counsel, defendant’s background, education, and
demonstrated legal abilities, and the complexity of the issues
involved. (Crandell, supra, 46 Cal.3d at p. 863.) If a defendant
seeks advisory counsel to obstruct or delay proceedings, this
weighs against the request.
Morelos’s background, education, and demonstrated legal
abilities, as well as the belated timing of his request for advisory
counsel, support the conclusion that the trial court would not
have abused its discretion by denying the request.
In Bigelow, where we concluded the trial court’s failure to
consider appointing advisory counsel was reversible error, the
defendant was a Canadian national with no familiarity with
California law. And although he had previously been in court,
he was represented by counsel on all but one occasion when he
pled guilty to a minor offense. (People v. Bigelow, supra,
37 Cal.3d at pp. 743–744.) In contrast, the record shows that
Morelos is not a foreign national. Rather, he attended high
school through the 10th grade, completed his GED, had one year
of general education from a community college, took a business
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course in prison, and “use[d] [the] law library daily for 1 yr
1993–1994.” Morelos pled guilty to felony offenses in California
in 1982 and 1988. In the current matter, Morelos represented
himself for nearly five months before asking for advisory
counsel; he had already prepared and submitted numerous legal
filings to the trial court. And Morelos made his request for
advisory counsel on December 8, 1995, just weeks before his
trial was scheduled to begin. Granting his request for advisory
counsel would likely have necessitated a delay in the
proceedings. Considering all of these factors, we conclude it
would not have been an abuse of discretion for the trial court to
deny his motion. As such, the deprivation of advisory counsel
was not per se prejudicial.
For similar reasons, Morelos fails to establish prejudice
under Watson. Morelos made his request for advisory counsel
to help with “expert witnesses and psychologists and
psychiatrists.” It appears he was referring to the mental health
professionals who were previously appointed to evaluate him.
Morelos ultimately chose not to call any mental health witnesses
to testify, and instead submitted the written reports of Drs. Burr
and Echeandia, as well as a third doctor, during the penalty
phase of his trial.
During Morelos’s penalty phase testimony, when the court
asked him why he did not call Dr. Jay Jackman to testify,
Morelos said he did not “care who testified” and only wanted to
cover the “competency issue” to “make sure there [weren’t]
grounds” for reversal of his conviction on appeal. Morelos’s
testimony thus suggests that he had no intention of eliciting
mitigating testimony from the mental health experts, which
belies his contention that the failure to appoint advisory counsel
to assist with these expert witnesses was prejudicial. On this
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record, it is not reasonably probable that different verdicts
would have been returned had Morelos received assistance in
securing and preparing “expert witnesses and psychologists and
psychiatrists.”
D. Section 1018 and the Eighth and Fourteenth
Amendments
Morelos represented himself at trial and waived his right
to a jury trial at both the guilt and penalty phases. At the guilt
phase, he waived his opening statement, declined to cross-
examine nine of the prosecution’s witnesses, testified against
himself, and waived his closing statement. At the penalty
phase, Morelos again waived his opening statement. He called
one prosecution witness, cross-examined two others, took the
stand and gave his own testimony, and again waived his closing
statement. Under these circumstances, Morelos argues he was
allowed to effectively accomplish what section 1018 prohibits —
to plead guilty in a capital case “without the consent of the
defendant’s counsel.” (Ibid.) According to Morelos, “to say that
[he] did not plead guilty because the court and parties went
through the motions of a trial is to elevate form over substance
in a manner that cannot be countenanced by section 1018.” In
Morelos’s view, this alleged breach of section 1018 deprived him
of his right to reliable proceedings under the Eighth and
Fourteenth Amendments.
1. Background
In October 1993, when the Santa Clara County Public
Defender’s Office represented him, Morelos asserted his desire
to waive his right to a preliminary examination. Morelos also
indicated his interest in a negotiated settlement with the
district attorney to dismiss one of the special circumstances and
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was prepared to plead guilty to the underlying charge and the
other special circumstance. His attorney refused to agree to any
of these requests. Defense counsel asserted her understanding
that under section 1018, a capital defendant cannot plead guilty
without counsel’s consent and specified that she refused to
accept or agree to a guilty plea. The prosecution agreed. The
trial court set the matter for a future hearing and encouraged
the parties “to submit some sort of Points and Authorities for
the Court’s consideration” in the interim. Defense counsel
submitted a memorandum of points and authorities identifying
our precedent regarding section 1018 and argued that it was
error for a trial court to accept a defendant’s guilty plea without
being represented by, and without the consent of, counsel.
Along with this filing, defense counsel submitted a letter to the
court written by Morelos that explained his desire to, and
rationale for, pleading guilty. On October 27, 1993, the trial
court, citing Chadd, supra, 28 Cal.3d 739 and section 1018,
ruled that Morelos could not enter a plea of guilty without the
consent of his attorney. After the trial court informed Morelos
that he could waive a preliminary examination against his
counsel’s consent, Morelos stated that he wanted a preliminary
hearing. At the subsequent preliminary hearing, Morelos
waived arraignment and pled not guilty.
On July 19, 1995, the trial court granted Morelos’s petition
to proceed in propria persona. Morelos waived his right to a jury
trial and proceeded to trial unrepresented. At the guilt phase of
trial, Morelos waived his opening statement. He declined to
cross-examine nine of the prosecution’s witnesses and after the
court advised him of his right to testify, Morelos took the stand
and asked if he could be questioned by the prosecution. Morelos
affirmed he wanted to testify and provided a narrative
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description of the events culminating in Anderson’s murder.
Morelos detailed his sexual assault of Anderson, which he said
lasted approximately 45 minutes and included Morelos forcing
copulation and sodomy upon Anderson. He also recounted how
he restrained Anderson, inflicted extreme pain upon him, and
subsequently tortured him. Morelos testified that he took
Anderson to Mount Hamilton and shot him in the head, but the
shot did not kill Anderson immediately. So he shot Anderson
again and left him there to die. Morelos also testified to two
prior offenses that he had been convicted of in 1988: the robbery
and burglary of John E., with enhancements for great bodily
injury. After testifying, Morelos rested his case and waived his
closing argument.
Morelos again waived his opening statement at the
penalty phase. Morelos recalled John E. to testify. Morelos
asked John E. to describe the incident between Morelos and
Danger that occurred at John E.’s grandmother’s house. John
E. testified that, to his knowledge, Morelos and Danger sparred
in the garage. The next day, Morelos told John E. that he had
forced himself on Danger. Morelos also asked John E. if he
recalled Morelos ever selling drugs at the Arena Hotel. John E.
did.
Morelos also cross-examined the prosecution’s witness
Timothy F. On direct examination, Timothy F. testified that
Morelos offered to orally copulate him and, when he refused,
Morelos threatened him with a knife and told him that he had
“raped guys before” and would do it again. On cross-
examination, Morelos asked if Timothy F. believed that Morelos
would have stabbed him had Morelos’s mother not been home.
Timothy F. said he believed Morelos would have. Morelos asked
Timothy F. if he believed that Morelos would have shot him had
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they been alone. Timothy F. said he did. And Morelos asked if
Timothy F. believed that Morelos would have “raped” him.
Timothy F. said “yes.”
Morelos briefly cross-examined Kenneth M., who had
testified that Morelos nearly hit him while driving a getaway
vehicle for a woman who had shoplifted from the store where
Kenneth M. worked as security. Morelos made an offer of proof
that the incident in which he nearly hit Kenneth M. with his car
went to a preliminary hearing, but there “was no holding at the
preliminary hearing” and Morelos was discharged. Kenneth M.
testified that he did not recall the preliminary hearing in that
matter.
Morelos then testified. He provided, in narrative form, a
social history of his life. He also testified to his past crimes,
which included numerous sexual assaults he committed at the
CYA, additional sexual assaults, and two murders in Oregon.
He answered affirmatively when asked if he “enjoy[ed] raping
people.”
Morelos stated that he had “no thought about” killing
Anderson, but he was “sorry that [he] didn’t kill [James C.] and
Harold [T.].” He said, “I don’t have any remorse or [sic] over any
of my actions, no.” When the prosecutor asked Morelos why
Judge Creed should give him the death penalty, Morelos
explained, “Well, if I don’t get the death penalty, I’ll be going to
another court because it’s a matter of time I’ll have a cellie and
I’ll eventually kill somebody else and then I will receive the
death penalty. Killing somebody in custody, I believe it’s death
penalty, almost certain.” He felt the death penalty was
appropriate since he killed and had the capacity to keep killing
and “the state has a right to retribution.”
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Morelos testified that he wanted to plead guilty, but his
public defender refused to consent and also refused his request
to waive a jury trial. He testified: “I know what I’m doing. I
made a rational decision and I wanted to commit a bunch of
murders, and that’s what I did. Regardless of the psychology of
it, and I think is bullshit because I could get ten different
psychologists and psychiatrists and they will all come up with
different reasons.” He further testified: “That’s the way I am
and that’s the way I’ll always be. I’ll always rape all the people
and I will continue to kill people. That’s the way I am.” When
asked if he wanted to add anything else, Morelos said, “I don’t
believe so.” The court asked if Morelos had any witnesses to call
or any evidence to present and he declined. Morelos did not
make a closing argument but requested immediate transfer
after a speedy sentence.
Before announcing the penalty, the court described this as
“an unusual case because the defendant has wished to plead
guilty since the proceedings began and has wanted to admit the
special circumstances. Defendant stated he believes the
appropriate penalty for his crimes is death. We have gone
through a court trial which the court would characterize as a
slow plea.” Although the court was “troubled by the procedure”
it specified that it sought guidance from Bloom, supra, 48 Cal.3d
1194. The court explained that “Morelos has offered no defense
to the charges. He has offered no mitigation in the penalty
phase of the trial. In fact, the defendant has exercised his
constitutional right to testify and has taken the stand and under
oath admitted his crimes, admitted the enhancement, the
special circumstances, and he has given testimony to justify the
finding for the court to impose the death penalty.”
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Morelos argues that his self-representation and his tactics
at trial were tantamount to a guilty plea or a slow plea in
violation of section 1018’s consent-of-counsel requirement. He
seeks reversal of his conviction and death sentence, arguing that
the proceedings below contravened section 1018 and were so
unreliable as to violate the Eighth Amendment.
2. Analysis
Pursuant to section 1018, “[n]o plea of guilty of a felony for
which the maximum punishment is death, or life imprisonment
without the possibility of parole, shall be received from a
defendant who does not appear with counsel, nor shall that plea
be received without the consent of the defendant’s counsel.” We
have recognized that the state has a strong interest in reducing
the risk of mistaken judgments in capital cases, and section
1018’s requirement of consent of counsel is an effort to eliminate
arbitrariness in the imposition of the death penalty. (People v.
Daniels (2017) 3 Cal.5th 961, 967, 982 (conc. & dis. opn. of
Cuéllar, J.) (Daniels) [expressing the opinion of the entire
court2]); People v. Alfaro (2007) 41 Cal.4th 1277, 1300 (Alfaro);
Chadd, supra, 28 Cal.3d at p. 750.) We have found reversible
error where trial courts have failed to follow section 1018,
permitting defendants to plead guilty to capital charges against
the advice of their attorneys. (Chadd, at pp. 754–755; People v.
Massie (1985) 40 Cal.3d 620, 622.)
Morelos contends that his collective actions as a self-
represented defendant — repeatedly demonstrating his wish to
2
See Daniels, supra, 3 Cal.5th at page 967 (Justice
Cuéllar’s “lead opinion . . . expresses the opinion of the entire
court on all issues [in Daniels] except part II.D.,” on pages 986
through 1005).
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plead guilty, assisting the prosecution in making its case, and
building a case against himself — were, in effect, equivalent to
a “slow plea” or a guilty plea without the consent of counsel.
Thus, Morelos argues, just as it was error for the trial courts to
accept guilty pleas from the capital defendants in Chadd and
Massie without counsel’s consent, it was similarly error under
section 1018 for the trial court here to condone his actions.
However, the cases Morelos relies on, finding reversible
error under section 1018 when trial courts have accepted pleas
from capital defendants against counsel’s advice, are inapposite.
The proceedings below were not tantamount to a guilty plea and
therefore did not implicate section 1018 nor its attendant,
constitutionally protected interest in reliable capital
proceedings.
We have defined a slow plea as an “ ‘ “agreed-upon
disposition . . . which does not require the defendant to admit
guilt but results in a finding of guilt . . . usually, for a promised
punishment.” ’ ” (Daniels, supra, 3 Cal.5th at p. 983 (conc. &
dis. opn. of Cuéllar, J.) [expressing the opinion of the entire
court].) A recognizable example of a slow plea “is a bargained-
for submission on the transcript of a preliminary hearing in
which the only evidence is the victim’s credible testimony, and
the defendant does not testify and counsel presents no evidence
or argument on defendant’s behalf.” (People v. Wright (1987)
43 Cal.3d 487, 496 (Wright).) This type of submission is
tantamount to a guilty plea because the defendant’s guilt is
apparent on the evidence presented at the preliminary hearing
and conviction is a foregone conclusion as no defense is mounted.
(Ibid.) A submission occurs when the defendant gives up his or
her right to a jury trial, the right to present additional evidence
as part of a defense and agrees the court can decide the case on
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the basis of the transcript of prior proceedings. (People v.
Robertson (1989) 48 Cal.3d 18, 39–40.) And a submission is
defined by the fundamental protections and rights a defendant
surrenders, such as the right to a jury, the right to confront
witnesses, and the privilege against self-incrimination.
(Daniels, at pp. 983–984 (conc. & dis. opn. of Cuéllar, J.);
Robertson, at p. 40; Chadd, supra, 28 Cal.3d at p. 748.)
The trial court’s passing characterization of the
proceedings below “as a slow plea” misdescribes their true
nature. As we explained in Daniels¸ “a trial, even one where a
defense is voluntarily forgone, is fundamentally different from a
guilty plea.” (Daniels, supra, 3 Cal.5th at p. 983 (conc. & dis.
opn. of Cuéllar, J.) [expressing the opinion of the entire court].)
At trial, the state is put to its burden of proof as to the charges,
whereas a plea “ ‘serves as a stipulation that the People need
introduce no proof whatever to support the accusation’ and ‘ “is
itself a conviction.” ’ (Chadd, supra, 28 Cal.3d at p. 748.)”
(Ibid.) While Morelos waived his right to a jury trial in favor of
a court trial, there is no indication that his waiver was the result
of a negotiated agreement about the punishment or the evidence
the prosecution would present; the prosecution was held to its
burden of proof at the guilt and penalty phases. (See id. at
p. 984 (conc. & dis. opn. of Cuéllar, J.).) The record shows that
Morelos affirmed that no one promised him anything or used
any force, threats, or pressure to induce his decision to waive his
right to a jury trial.
Nor does the record suggest Morelos gave up the
opportunity to exercise his right to confront witnesses or
challenge the evidence at trial. Although Morelos declined to
cross-examine nine of the prosecution’s witnesses, he did not
waive his right of confrontation. Morelos reserved the right to
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call a witness who had testified against him and cross-examined
three prosecution witnesses. Although he now argues he did so
only to elicit aggravating evidence, his questioning of these
witnesses demonstrates that he exercised, rather than
relinquished, his right of confrontation. Morelos’s decision not
to cross-examine all of the prosecution’s witnesses was not an
express waiver of his right to confront and cross-examine
witnesses required as part of a submission. (Wright, supra,
43 Cal.3d at p. 497.)
Morelos did not preserve the privilege against self-
incrimination and instead chose to testify at both the guilt and
penalty phases. At the guilt phase, Morelos asked the court if
he could take the stand and be questioned by the prosecution.
At the penalty phase, the personal narrative and social history
he provided in his testimony included details of childhood abuse
and family struggles that could be assessed as mitigating
factors. And while section 1018 advances the purpose of
ensuring reliable judgments in capital cases, the concern for
reliability does not require or justify forcing a defendant to
present an affirmative defense in a capital case. (Bloom, supra,
48 Cal.3d at p. 1228.) Requiring a defendant to present a
defense or prohibiting a defendant from testifying would
contravene the autonomy and dignity interests underlying the
Sixth Amendment right to self-representation. (Mickel, supra,
2 Cal.5th at pp. 181, 210; Blair, supra, 36 Cal.4th at pp. 686,
738.) And as we have acknowledged, requiring a pro se
defendant to present a vigorous defense “would produce
perverse incentives, encouraging defendants who wish to avoid
the death penalty to decline to present any defense, knowing
that their sentence will be reversed on appeal.” (Daniels, supra,
3 Cal.5th at p. 985 (conc. & dis. opn. of Cuéllar, J.) [expressing
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the opinion of the entire court]; see also Bloom, at pp. 1227–
1228.) In sum, Morelos’s actions at trial did not amount to an
unreliable slow plea in violation of section 1018.
E. Section 1018 and the Sixth Amendment
Morelos alternatively argues that section 1018’s consent-
of-counsel requirement violates a defendant’s Sixth Amendment
right to control the prerogative of his or her defense, a right
recently underscored by the United States Supreme Court in
McCoy v. Louisiana (2018) 584 U.S. __ [138 S.Ct. 1500] (McCoy).
Morelos recognizes that this argument and his claim, ante, that
his trial court proceedings violated section 1018 are mutually
exclusive since they require us to either enforce section 1018 or
invalidate it, but he nevertheless asks us to accept either
argument.
As explained, on October 27, 1993, the trial court
precluded Morelos from pleading guilty after “review[ing] Penal
Code section 1018, as well as the cases that relate to that code
section, specifically People versus Chadd, 28 Cal.3d. 739.”
In Chadd, we read Faretta’s conclusion that self-
representation is “an independent right implied by the
structure . . . of the Sixth Amendment” as not affecting the
Legislature’s “authority to condition guilty pleas in capital cases
on the consent of defense counsel.” (Chadd, supra, 28 Cal.3d at
pp. 751, 750.) We observed that Faretta addressed a defendant’s
“right to ‘make a defense’ in ‘an adversary criminal trial,’ ” and
concluded, “[n]othing in Faretta, either expressly or impliedly,
deprives the state of the right to conclude that the danger of
erroneously imposing a death sentence outweighs the minor
infringement of the right of self-representation resulting when
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defendant’s right to plead guilty in capital cases is subjected to
the requirement of his counsel’s consent.” (Id. at p. 751.)
Over 25 years after we decided Chadd, we again held
section 1018 constitutional in Alfaro, supra, 41 Cal.4th 1277.
There, “the defendant accepted complete responsibility for the
offenses in a videotaped confession on the day of her arrest.”
(People v. Frederickson (2020) 8 Cal.5th 963, 992 (Frederickson),
citing Alfaro, at p. 1295.) Ten days before jury selection began,
defense counsel informed the trial court that the defendant
wanted to plead guilty “ ‘against [his] vigorous, vigorous
advice.’ ” (Alfaro, at p. 1296) The court explained that under
section 1018 the defendant could not plead guilty against her
attorney’s advice. (Ibid.) The prosecutor “argued during the
penalty phase that the defendant had not accepted
responsibility and lacked remorse, and the jury did not hear
evidence [reflecting] that [she] had attempted to enter a guilty
plea.” (Frederickson, at p. 992, citing Alfaro, at pp. 1296–1297.)
Our Alfaro decision acknowledged the defendant’s
argument that “a defendant has the ultimate, fundamental
right to control his or her own defense,” but concluded that
section 1018 was “one of several exceptions to the general rule
recognizing ‘ “the need to respect the defendant's personal
choice on the most ‘fundamental’ decisions in a criminal case.” ’ ”
(Alfaro, supra, 41 Cal.4th at p. 1298.) We noted that “[t]he
statute constitutes [a] legislative recognition of the severe
consequences of a guilty plea in a capital case, and provides
protection against an ill-advised guilty plea and the erroneous
imposition of a death sentence.” (Id. at p. 1300.)
After these decisions by our court, in McCoy, supra,
584 U.S. at p. __ [138 S.Ct. at p. 1500], the United States
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Supreme Court considered whether the Sixth Amendment
precluded defense counsel from admitting the defendant’s guilt
before a jury over the defendant’s objection. There, “the
defendant vociferously insisted that he did not engage in the
charged [murders] and adamantly objected to any admission of
guilt,” but his attorney thought the best strategy was to admit
the crimes during the guilt phase and seek mercy during the
penalty phase. (McCoy, supra, 584 U.S. at p. __ [138 S.Ct. at
p. 1505].) The trial court denied the defendant’s request to
remove his counsel and defense counsel’s request to be relieved
if the defendant secured another attorney. (Id. at p. __
[138 S.Ct. at p. 1506]) The court told counsel to decide how to
proceed. (Ibid.) Defense counsel acknowledged during his
opening statement that the evidence unambiguously showed the
defendant committed the three murders, while the defendant
thereafter testified he was innocent. (Id. at p. __ [138 S.Ct. at
p. 1507].) The jury found the defendant guilty and returned
three death verdicts. (Ibid.)
“The [McCoy] defendant, represented by new counsel,
unsuccessfully moved for a new trial on the ground that the
court had violated his constitutional rights by allowing counsel
to concede his guilt over his objection.” (Frederickson, supra,
8 Cal.5th at p. 993, citing McCoy, supra, 584 U.S. at p. __
[138 S.Ct. at p. 1507].) The Louisiana Supreme Court affirmed
the trial court’s ruling, concluding that defense counsel had
authority to make such a concession against the defendant’s
wishes “because defense counsel reasonably believed that
admitting guilt offered the defendant the best chance to avoid a
death sentence.” (Frederickson, at p. 993, citing McCoy, at p. __
[138 S.Ct. at p. 1507].)
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The United States Supreme Court reversed the judgment.
(McCoy, supra, 584 U.S. at p. __ [138 S.Ct. at p. 1512].) It
explained that “[t]he trial court’s allowance of [defense
counsel’s] admission of McCoy’s guilt despite McCoy’s insistent
objections was incompatible with the Sixth Amendment.” (Id.
at p. __ [138 S.Ct. at p. 1512].) “While some decisions, such as
trial management, are best left to counsel, ‘[s]ome decisions . . .
are reserved for the client — notably, whether to plead guilty,
waive the right to a jury trial, testify in one’s own behalf, and
forgo an appeal.’ ” (Frederickson, supra, 8 Cal.5th at p. 993,
quoting McCoy, at p. __ [138 S.Ct. at p. 1508], italics added by
McCoy.) Counsel can make “strategic choices about how best to
achieve a client’s objectives,” but the defendant chooses the
objectives, such as an objective to “maintain innocence of the
charged criminal acts.” (McCoy, at pp. __ [138 S.Ct. at pp. 1508,
1509])
Most recently, in Frederickson, supra, 8 Cal.5th 963, the
capital defendant, like Morelos, raised a constitutional
challenge to section 1018. We directed the parties to file
supplemental briefs addressing the relevance, if any, of McCoy
on the issue. Ultimately, our Frederickson opinion detailed the
decision in McCoy, but we had no need to decide its bearing on
the defendant’s claim because the defendant forfeited his
constitutional challenge to section 1018 by failing to adequately
present it to the superior court. (Frederickson, at pp. 993–994.)
In 1996, when the Frederickson defendant attempted to plead
guilty in the municipal court, “the judicial officers before whom
he appeared were not acting as judges; rather, they were sitting
as magistrates” and they lacked statutory authority to accept
guilty pleas in a capital case. (Id. at p. 995.) As we explained,
“[i]f defendant wanted to challenge the constitutionality of
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section 1018, whether on the ground that it precluded him from
using a guilty plea to lay the foundation for a penalty phase
remorse argument or on some other ground, he needed to
request to plead guilty in the superior court and ask that court
to make a ruling based on section 1018, thus preserving the
issue on appeal. He never did so.” (Id. at p. 994.) Moreover,
“[a]t no point did the municipal court rule that, based on section
1018, it would not accept defendant’s guilty plea.” (Id. at p. 996.)
Like in Frederickson, at the time Morelos sought to plead
guilty, the municipal court was not authorized to receive a guilty
plea in a capital case and Morelos never requested to plead
guilty in superior court. However, unlike in Frederickson, there
is no doubt that defendant secured a ruling from the municipal
court that he could not plead guilty under section 1018. After
encouraging briefing from the parties on the question, the
municipal court concluded that section 1018 and our decision in
Chadd prevented it from taking a guilty plea from Morelos
absent his counsel’s consent. By contrast, the Frederickson
defendant’s requests to plead guilty in municipal court were
denied on bases unrelated to section 1018. (Frederickson, supra,
8 Cal.5th at p. 996.) Here, since the municipal court itself
appears to have overlooked its own jurisdictional limitations in
making its ruling, which was expressly premised on section
1018, we will assume arguendo that Morelos preserved his
claim. Under these circumstances, we will address the merits
of Morelos’s constitutional challenge to section 1018.
Proceeding to the merits, we decline to read into McCoy’s
passing dictum a credible basis for overruling our longstanding
precedent upholding the constitutionality of section 1018. Like
the defendants in Chadd and Alfaro, Morelos makes no claim
that he sought to plead guilty in hopes of a more favorable
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outcome during the penalty phase. (See Chadd, supra,
28 Cal.3d at p. 753 [the defendant wanted “the state to help him
commit suicide”]; Alfaro, supra, 41 Cal.4th at p. 1300
[“defendant desired to plead guilty in order to avoid testifying
against” someone she and her family had reason to fear].)
Accordingly, as in those cases, we have no occasion to consider
here whether a defense strategy to plead guilty in hopes of a
more favorable outcome during the penalty phase should
override the protective provisions of the statute. (Alfaro, at
pp. 1299–1300.)
Moreover, McCoy is the factual inverse of this case. McCoy
was a jury trial case in which defense counsel overrode the
defendant’s express objective to maintain his innocence. It did
not consider a defendant’s wish to admit guilt, let alone whether
states can preclude a capital defendant from pleading guilty
without counsel’s consent in order to advance the state’s strong
interest in reliable capital convictions. As we have previously
discussed, a guilty plea has unique consequences. (See ante, at
pp. 28–29.) “Indeed, it serves as a stipulation that the People
need introduce no proof whatever to support the accusation: the
plea ipso facto supplies both evidence and verdict.” (Chadd,
supra, 28 Cal.3d at p. 748.) While McCoy’s dictum that “[s]ome
decisions . . . are reserved for the client — notably, whether to
plead guilty” (McCoy, supra, __ U.S. at p. __ [138 S.Ct. at
p. 1508], italics added) certainly reiterates the critical
importance of a defendant’s autonomy interests, absent a
clearer directive, we are not convinced it renders section 1018
unconstitutional. Indeed, long before McCoy was decided, the
high court said essentially the same thing in Jones v. Barnes
(1983) 463 U.S. 745, 751, and we nevertheless upheld section
1018 in Alfaro. (See Jones v. Barnes, at p. 751 [“It is also
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recognized that the accused has the ultimate authority to make
certain fundamental decisions regarding the case, as to whether
to plead guilty, waive a jury, testify in his or her own behalf, or
take an appeal” (italics added)].) McCoy’s dictum does not
change the legal landscape that was before us when we decided
Chadd and Alfaro.
In sum, in view of the high stakes consequences for a
defendant in a capital case, we are unpersuaded that McCoy’s
passing dictum precludes the state from concluding “that the
danger of erroneously imposing a death sentence outweighs the
minor infringement of the right of self-representation resulting
when defendant’s right to plead guilty in capital cases is
subjected to the requirement of his counsel’s consent.” (Chadd,
supra, 28 Cal.3d at p. 751.)
F. Defendant’s Waiver of His Constitutional Right
to a Jury Trial
Morelos contends the record fails to establish a valid
waiver of his right to a jury trial at the guilt, special
circumstance, and penalty phases of his trial, requiring reversal.
1. Background
On July 27, 1995, the prosecutor told Judge Ball that he
had spoken with Morelos and that they “would be likely to waive
jury on this case both as to the penalty and guilt phase.”
Morelos confirmed, “Yes, that’s correct.” Judge Ball responded
that while he was “prepared to take a jury waiver on the guilt
phase issues,” he was “not convinced that it’s either in the
interest of justice to take a jury waiver on the penalty phase”
and that if the parties agreed, he would “be willing to take a
waiver of a jury as to the guilt phase and merely select a jury for
purposes of penalty.” The prosecutor explained that he
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preferred to have a court trial all the way through to avoid the
necessity of going through voir dire on a jury with a self-
represented defendant. Judge Ball stated that he had
“considered the matter long and hard” and researched the issue.
He again stated that he determined “the interest of justice can
best be served by a waiver of a jury as to the guilt phase and a
selection of a jury for purposes of the penalty phase.”
At the subsequent hearing on August 2, 1995, Judge Ball
inquired if the parties had considered his previously stated
position that he would accept a jury waiver as to the guilt phase,
but not the penalty phase. The prosecutor responded that “it is
still Mr. Morelos’ [sic] wish and my wish to have a judge sitting
without jury decide the penalty of this case.” He continued, “I
know you’ve indicated the way you feel Mr. Morelos and I feel
that we would like to have a judge decide this” and inquired as
to the possibility of having the case assigned to another judge.
Judge Ball stated that the parties “may have to inquire as to
other judges whether or not they are willing to accept a jury
waiver on the penalty phase” and that he had no hesitation in
referring the matter to another judge to inquire “if there is any
judge that is willing to accept the jury waiver on the penalty
phase.” If no judge was willing to take a penalty phase waiver,
the prosecutor indicated that Judge Ball’s department would be
his first choice; Morelos agreed.
At the August 9, 1995 hearing, Judge Ball stated that he
discussed the jury waiver matter with the presiding judge of his
division and was advised that Judge Creed was amenable to a
waiver of trial by jury as to both guilt and penalty and the case
would be assigned to him. On August 11, 1995, Morelos agreed
to waive time until Judge Creed was available to try his case.
Judge Ball then explained that the supervising judge suggested
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that he could take a specific jury waiver for Judge Creed and
then assign the matter directly to him. The parties agreed and
Judge Ball took Morelos’s jury waiver. Morelos was self-
represented.
“THE COURT: Now, you understand that you have an
absolute constitutional right to trial by a jury. In other
words, 12 individuals to make the factual determination
both as to your guilt and in the event that that jury would
find you guilty and determine one or more special
circumstances to be true, that you would have a
constitutional right to a jury to determine the penalty for
which the crimes would be punishable.
Now, that’s been explained to you and you
understand that, correct.
“THE DEFENDANT: Yes. That’s been explained and I do
understand it.
“THE COURT: And you — at this time, it’s my
understanding based upon that understanding, you wish
to freely and voluntarily waive those rights to those jury
trials, provided that Judge Daniel Creed will make this
specific to this particular judge, is agreeable to hear your
trial; is that correct?
“THE DEFENDANT: Yes, I waive jury.
“THE COURT: Now, has anybody promised you anything,
used any force, threats, pressure on you of any kind to get
you to make that decision?
“THE DEFENDANT: No, no one.
“THE COURT: In other words, you’ve made that decision
freely and voluntarily based on your own knowledge and
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understanding of the facts, and that the law that has been
explained to you and that you understand?
“THE DEFENDANT: Yes.
“THE COURT: All right. The People wish to join in that
jury waiver, Mr. Schon?
“MR. SCHON: Yes, your Honor.
“THE COURT: All right. Based upon the fact that the
defendant has so indicated, the Court will find that the
defendant freely, knowingly and intelligently has, in fact,
waived his right to a jury trial both as to the penalty and
the guilt phase of the Information. And that waiver is
limited specifically to the availability of Judge Daniel
Creed hearing the matter.”
Having so found, Judge Ball assigned the matter to Judge
Creed.
At the start of trial on January 3, 1996, Judge Creed asked
Morelos several questions regarding his decision to waive a jury
trial.
“THE COURT: At this time you want to go forward
representing yourself?
“THE DEFENDANT: Yes.
“THE COURT: You also do understand that you have an
absolute constitutional right to have a trial by jury?
“THE DEFENDANT: Yes.
“THE COURT: And you understand that right?
“THE DEFENDANT: Yes, sir.
“THE COURT: And do you give up that right at this time?
“THE DEFENDANT: Yes, your Honor, I do.”
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At the beginning of the penalty phase, Judge Creed again
asked Morelos about his desire to waive his right to a jury trial.
“THE COURT: Mr. Morelos, we have ended phase one,
which is the guilt phase of the trial. We’re about to begin
phase two, which is the penalty phase. Let me clarify
something. At this particular time if you so desire we
could break the trial if you decided, one, you wanted to be
represented by an attorney, or two, if you decided you
wanted to go to the second phase with the jury, you could
make that request at this time and I would grant that
request. Is that what you want to do?
“THE DEFENDANT: No, sir, I do not.
“THE COURT: You want to continue on as a court trial?
“THE DEFENDANT: Yes, I do.”
2. Analysis
A criminal defendant has the constitutional right to a jury
trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; People
v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).)
However, a defendant may waive this fundamental right to a
jury trial by a personal and express waiver in open court and by
consent of both parties. (Cal. Const., art. I, § 16; People v.
Collins (2001) 26 Cal.4th 297, 308 (Collins); People v. Hovarter
(2008) 44 Cal.4th 983, 1026.) To be valid, the record must show
the defendant’s waivers of the right to a jury are knowing,
intelligent, and voluntary. (Collins, at p. 305.) In making such
a determination, we examine “the totality of the circumstances”
unique to each case. (Sivongxxay, at p. 167.)
Morelos acknowledges that he agreed, during the waiver
colloquy, that his right to a jury trial at the guilt and penalty
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phases had been explained to him and that he understood that
right. However, he contends Judge Ball inadequately explained
the contours of the jury trial right; specifically, the judge’s
“statement may have illuminated the size of a jury (12
individuals), but it did not elaborate on what a jury trial entails,
how a jury is selected, that jury members must be impartial and
their verdict unanimous, or that a judge alone would decide his
fate.”
We take this opportunity to reemphasize “the value of a
robust oral colloquy in evincing a knowing, intelligent, and
voluntary waiver of a jury trial.” (Sivongxxay, supra, 3 Cal.5th
at p. 169.) In Sivongxxay, we recommended “that trial courts
advise a defendant of the basic mechanics of a jury trial in a
waiver colloquy, including but not necessarily limited to the
facts that (1) a jury is made up of 12 members of the community;
(2) a defendant through his or her counsel may participate in
jury selection; (3) all 12 jurors must unanimously agree in order
to render a verdict; and (4) if a defendant waives the right to a
jury trial, a judge alone will decide his or her guilt or innocence.”
(Ibid.) Indeed, a thorough record of a jury trial waiver aids
meaningful appellate review. However, our guidance in
Sivongxxay was simply that, it was “not intended to limit trial
courts to a narrow or rigid colloquy” and “[u]ltimately, a court
must consider the defendant’s individual circumstances and
exercise judgment in deciding how best to ensure that a
particular defendant who purports to waive a jury trial does so
knowingly and intelligently.” (Id. at p. 170; see Daniels, supra,
3 Cal.5th at pp. 992–993 (conc. & dis. opn. of Cuéllar, J.) [“We
continue to eschew any rigid rubric for trial courts to follow in
order to decide whether to accept a defendant’s relinquishment
of this right”]; id. at p. 1018 (conc. & dis. opinion of Corrigan, J.)
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[“We have consistently eschewed any rigid formula or particular
form of words that a trial court must use to ensure that a jury
trial waiver is knowing and intelligent”].)
Here, the relevant circumstances demonstrate that
Morelos’s waiver was voluntary, knowing, and intelligent.
Looking first at the colloquy itself, Judge Ball advised Morelos
that he had “an absolute constitutional right to a trial by a jury.”
Morelos was also told that a jury trial means “12 individuals to
make the factual determination . . . as to your guilt.” He was
further informed that should the jury “find you guilty and
determine one or more special circumstances to be true,” he
“ha[s] a constitutional right to a jury to determine the penalty.”
Four separate times, the trial court asked Morelos if he
understood the right he was giving up. As quoted in full above,
Morelos was first asked: “Now, that’s been explained to you and
you understand that, correct[?]” He replied, “Yes. That’s been
explained and I do understand it.” Judge Ball then asked
Morelos if he wished to waive his jury trial rights and have a
specific judge, Judge Creed, hear his trial. Morelos said, “Yes, I
waive jury.” Morelos was then asked to confirm that he “freely
and voluntarily” waived his right to a jury trial. Morelos was
thereafter asked to confirm that no one “promised you anything,
used any force, threats, pressure on you of any kind to get you
to make that decision.” He then was asked to confirm that
“you’ve made that decision freely and voluntarily based on your
own knowledge and understanding of the facts, and that the law
that has been explained to you.” Morelos answered in the
affirmative each time. Thereafter, Judge Creed first, prior to
the commencement of the guilt phase, confirmed with Morelos
that he understood he had “an absolute constitutional right to
have a trial by jury,” and then asked Morelos to separately
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confirm that he understood the right and wished to give up the
right, which he did. Then prior to the commencement of the
penalty phase, Judge Creed informed Morelos that he could now
“break the trial” to enable Morelos to choose to have counsel
represent him and/or have a jury empaneled for the penalty
phase, and Morelos again declined. At no point in these
colloquies did Morelos indicate confusion or ask any questions.
Thus, the trial court’s colloquies were not in any way
“devoid of meaningful advisement” or “threadbare.” (Dis. opn.
of Liu, J., post, at pp. 2, 9.) Morelos waived a jury three
different times before two different judges, and was expressly
told that he had a constitutional right to a jury, that the jury
would be comprised of 12 individuals, that the jury would make
a factual determination as to his guilt, and that he had a
separate constitutional right to a jury at his penalty trial. The
court then asked Morelos repeatedly if he was making his
decision freely and voluntarily and he confirmed each time that
he was. In short, Morelos was substantively advised about the
core nature of a jury trial and the consequences of waiving such
a trial: that his entire case — including any penalty phase —
would be tried before a judge, specifically Judge Creed. 3
3
Though our dissenting colleague concedes “that we have
not insisted on a rigid rubric of advisements, nor have we
required advisement of every one of the[] four [jury trial
attributes cited in Sivongxxay, supra, 3 Cal.5th at page 169] in
order to uphold a jury trial waiver” (dis. opn. of Liu. J., post, at
p. 2), he repeatedly focuses on three purported omissions from
the jury waiver colloquies: that Morelos was not told “he could
participate in jury selection, that the jury must be unanimous
in order to render a verdict, or that a judge alone would decide
his guilt and the appropriate penalty in the absence of a jury.”
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Moreover, while Judge Ball did not explicitly reference
Morelos’s right to participate in jury selection during the
colloquy, Judge Ball otherwise made mention of jury selection
prior to the waiver hearing, and spoke about how jury selection
might affect the timing of trial should the parties fail to secure
a judge willing to take a penalty phase jury waiver. For
instance, at the August 2, 1995 hearing, Judge Ball stated, “I
haven’t discussed with you both scheduling and just when you
perceive this matter would be ready for trial, and at what time,
what stage juries would be impanelled [sic] and the attendant
issues in terms of jury selection.” At a different hearing, the
prosecutor, in the presence of Morelos, stated that a court trial
was preferred to “avoid the necessity of going through voir dire
on a jury with a pro per.” The dissent notes that this discussion
“provide[s] no meaningful information about how a jury is
selected or Morelos’s right to participate in that process.” (Dis.
opn. of Liu, J., post, at p. 12.) But the fact remains that multiple
references in two separate hearings to jury selection (including
(Dis. opn. of Liu, J., post, at p. 5; see also id. at pp. 2, 10.) We
have never suggested that the failure to advise on these three
points renders a jury waiver unknowing and unintelligent. To
the contrary, we have emphasized that we must examine “the
totality of the circumstances.” (Sivongxxay, supra, 3 Cal.5th at
p. 167; see Daniels, supra, 3 Cal.5th at p. 991 (conc. & dis. opn.
of Cuéllar, J.).) And we have rejected claims that jury trial
waivers were invalid because of a trial court’s failure to
explicitly mention many of the same jury trial attributes that
the dissent now relies on here. (See Sivongxxay, at p. 168
[“under the totality of the circumstances standard,” the failure
to mention juror unanimity and impartiality did not render the
“defendant’s waiver constitutionally infirm”]; Weaver, supra, 53
Cal.4th at pp. 1072–1074 [the failure to advise the defendant of
his right to participate in jury selection did not render his jury
trial waiver invalid].)
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reference to timing concerns related to jury selection and to
concerns about conducting jury selection with a self-represented
defendant) are relevant to our assessment of the “totality of
circumstances” of Morelos’s understanding of his right to a jury.
(Sivongxxay, supra, 3 Cal.5th at p. 167.)
Consistent with the conclusion that Morelos knowingly
waived his right to a jury trial, Morelos’s pretrial conduct and
actions at trial made clear his desire to have his guilt and
penalty adjudicated expeditiously. More than two years prior to
the commencement of trial, Morelos repeatedly expressed a
desire to plead guilty. On October 4, 1993, Morelos’s attorney
pointedly told the court that defendant wanted “to enter a plea
of guilty to the charges, and to proceed to the penalty phase.” A
few weeks later, in a letter to the court, Morelos explained that
he “was looking for a way to plead guilty.” After he could not
plead guilty, Morelos moved to represent himself. During the
hearing on his Faretta motion, Morelos testified that he
understood he had a right to a trial by jury; he initialed his
Faretta form to indicate his understanding of the same. During
his penalty phase testimony, Morelos told the court, “I tried to
have a speedy trial. [. . .] [¶] I wish to plead guilty.” As
explained ante, during Morelos’s penalty phase testimony, when
the court asked him why he did not call a psychiatrist to testify,
Morelos said he did not “care who testified” and only wanted to
cover the “competency issue” to “make sure there [weren’t]
grounds” for reversal of his conviction on appeal. It is apparent
from this record that Morelos’s choice to waive his jury trial
right was part of a deliberate, overall strategy spanning years
to quickly obtain reliable, appeal-proof verdicts.
In arguing that Morelos’s waiver was invalid, Morelos and
the dissent emphasize the fact that Morelos was self-
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represented at the time of his waiver. It is correct that the
absence of counsel may be “a relevant factor” in determining
whether a defendant knowingly and intelligently waives his
right to a jury trial. (Dis. opn. of Liu, J., post, at p. 6.)
“Nonetheless, it is well established that a self-represented
defendant may validly waive a jury trial without the guiding
hand of counsel.” (Daniels, supra, 3 Cal.5th at p. 1024 (conc. &
dis. opn. of Corrigan, J.).) On the record here, the absence of
counsel did not render Morelos’s waiver unknowing and
unintelligent.
It is true that at the moment Morelos waived his right to
a jury, he was without counsel. But, it is relevant that, as noted
ante, Morelos exhibited some legal knowledge, submitting
filings with citations to relevant authority on numerous issues.
More significantly, Morelos was represented by counsel in his
case for over two and a half years before he moved to represent
himself; he was represented up until less than a month before
he entered his jury waiver. Indeed, defendant confirmed during
his penalty phase testimony that he had discussed waiving a
jury with his attorneys. He testified that he “asked to waive jury
trial” and “[t]hey” — meaning his attorneys — “refused that.”
While we need not rely on this testimony in light of the strength
of the record otherwise, as it was not before the trial court at the
time it accepted Morelos’s jury trial waiver, it does offer unique
insight into Morelos’s thought processes and supports the
conclusion that his waiver was voluntary, knowing, and
intelligent.
Furthermore, prior to Morelos’s jury trial waiver, the
prosecutor explained to the court that he and Morelos had
multiple conversations concerning Morelos’s desire to waive a
jury. In fact, at the July 27, 1995 hearing, Morelos said it was
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“correct” that he “would be likely to waive jury on this case both
as to the penalty and guilt phase.” That hearing concluded with
the prosecutor indicating that he and Morelos should discuss
Judge Ball’s proposal to only accept a waiver for the guilt phase.
At the August 2, 1995 hearing, the prosecutor, in the presence
of Morelos, explicitly referenced “Mr. Morelos’ [sic] wish . . . to
have a judge sitting without jury decide the penalty of this case”
and acknowledged “I know you’ve indicated the way you feel Mr.
Morelos.” Though the dissent accuses the majority of drawing
“speculative inferences” (dis. opn. of Liu, J., post, at p. 14), it is
the dissent who speculates here, suggesting that the prosecutor
somehow pressured Morelos into waiving a jury. While the
dissent asserts that this is not the intended suggestion (id. at
p. 9), it nonetheless goes to great lengths to emphasize that the
prosecutor “drove,” “pursued,” was “insistent in,” was “intent
on,” “pushed,” and was “determined” to have a court trial. (Id.
at pp. 7, 8, 9.) We can only assume these word choices were
intentional. But there is nothing in the record to reflect that the
prosecution “drove” or “pushed” Morelos to waive a jury. And
again, the dissent ignores that we must look at the “totality of
the circumstances” (Sivongxxay, supra, 3 Cal.5th at p. 167); the
fact that Morelos willingly waived his right to a jury trial after
having multiple conversations with the prosecutor about
waiving a jury trial is a relevant data point in our analysis.
Finally, Morelos’s jury waiver was contemplated over an
extended period of time. Morelos consistently persisted in his
desire to waive his penalty phase jury despite Judge Ball’s
resistance and the seeming inconvenience of having to find a
judge who would agree to accept a waiver as to both the guilt
and penalty phases of trial. He agreed to waive his speedy trial
rights because doing so was necessary to ensure Judge Creed
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could hear his entire trial. And at the beginning of the guilt and
penalty phases, Judge Creed confirmed Morelos’s desire to
proceed without a jury.
The dissent “do[es] not understand how [the fact that
Morelos’s waiver was considered over “an extended period of
time” (ante, at p. 48)] sheds any light on what Morelos knew
about a jury trial [waiver].” (Dis. opn. of Liu, J., post, at p. 14.)
But the timeline here proves to be an important part of “the
totality of the circumstances” surrounding Morelos’s waiver.
(Sivongxxay, supra, 3 Cal.5th at p. 167.) During the time
leading up to his waiver, Morelos was able to talk to the
prosecutor and engage with the court. He was willing to delay
the start of his trial to make sure that Judge Creed, who would
accept a jury waiver at the guilt phase, could hear his case.
Months later, Judge Creed confirmed with Morelos that he
wished to waive his jury trial rights. Morelos did not have to
make his waiver decision rashly or without time to reflect. This
factor further supports our conclusion that Morelos’s jury
waiver was knowing and intelligent.
These circumstances stand in stark contrast to those in
Daniels, upon which Morelos principally relies, wherein a
majority of this court upheld the defendant’s jury trial waiver
for the guilt phase, but found the defendant’s penalty phase
waiver constitutionally infirm. In Daniels, it was the judge who
introduced the idea of a jury trial waiver, and he did so on the
same day the waiver was taken; “[u]p until that point, Daniels
never explicitly requested or referenced a court trial.” (Daniels,
supra, 3 Cal.5th at p. 993 (conc. & dis. opn. of Cuéllar, J.).) In
contrast to this rushed, judge-driven sequence of events in
Daniels, Morelos’s desire to waive jury was expressed to the trial
court nearly three weeks before his waiver was accepted and
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months before trial. Morelos confirmed his desire to waive jury
on three separate occasions, in front of two different judges.
Unlike the Daniels judge who prompted the defendant’s waiver,
Judge Ball repeatedly expressed reluctance to accept a jury
waiver at the penalty phase. Judge Ball’s ongoing concern that
a jury trial waiver at the penalty phase would not serve “the
interest of justice” almost certainly conveyed to Morelos the
importance of the jury trial right, and the potential
disadvantages of waiving it.
The waiver colloquy here was also more substantial than
in Daniels. The court in Daniels did not orally advise Daniels
that a jury is comprised of 12 individuals, or ask him if he
understood what the jury trial right entailed. (Daniels, supra,
3 Cal.5th at pp. 986–988 (conc. & dis. opn. of Cuéllar, J.).) As
stated, here, Judge Ball advised Morelos that his jury would be
made up of 12 individuals and that a waiver meant Judge Creed
would decide his guilt and penalty. Judge Ball also confirmed
that the jury trial right had been explained to Morelos and that
he understood it. There was no comparable exchange in Daniels.
We therefore disagree with the dissent that “the record of
advisement here leaves as much doubt about the validity of the
waiver as the record in Daniels.” (Dis. opn. of Liu, J., post, at
p. 5.)
More generally, the dissent concludes “the record provides
no indication that Morelos waived a jury trial ‘ “ ‘ “ with a full
awareness both of the nature of the right being abandoned and
the consequences of the decision to abandon it.” ’ ” ’ ” (Dis. opn.
of Liu, J., post, at p. 15.) We read the record quite differently.
The dissent asserts that our conclusion that Morelos was
adequately advised about the substance of his jury trial right
relies on “loose conjecture” and “speculative inferences.” (Dis.
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opn. of Liu, J., post, at p. 14.) But our holding relies on neither
speculation nor conjecture. It is based on uncontested facts. To
summarize, Morelos was: (1) advised that he had a
constitutional right to a jury, that the jury would be comprised
of 12 individuals, that the jury would make a factual
determination as to his guilt, and that he had a separate
constitutional right to a jury at his penalty trial; (2) he
ultimately waived jury three separate times before two separate
judges; (3) in waiving his right to counsel, Morelos affirmed
orally and in writing that he understood he had a right to a trial
by jury; (4) jury selection was discussed at two separate hearings
in Morelos’s presence before he waived jury; (5) Morelos had
multiple conversations with the prosecutor about his jury trial
waiver; (6) Morelos testified at his penalty trial that he had
discussed waiving jury with his lawyers, stating that he “asked
to waive jury trial” and “[t]hey” — meaning his attorneys —
“refused that”; (7) Morelos exhibited some legal knowledge in
pretrial proceedings, including submitting filings with citations
to relevant authority on numerous issues; and (8) Judge Ball
told Morelos that he was concerned that a jury trial waiver at
the penalty phase would not serve “the interest of justice,”
thereby conveying to Morelos the importance of a jury and the
potential disadvantages of waiving a jury trial. These facts are
not in dispute. Given this record, we simply disagree with the
dissent that Morelos’s jury trial waiver was constitutionally
infirm because Morelos was not also advised that “he could
participate in jury selection, that the jury must be unanimous
in order to render a verdict, or that a judge alone would decide
his guilt and the appropriate penalty in the absence of a jury.”
(Id. at p. 5.) Instead, we repeat that there is not “any rigid
formula or particular form of words that a trial court must use
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in taking a jury waiver” (Sivongxxay, supra, 3 Cal.5th at p. 169)
and “[u]ltimately, a court must consider the defendant’s
individual circumstances and exercise judgment in deciding how
best to ensure that a particular defendant who purports to waive
a jury trial does so knowingly and intelligently” (id. at p. 170).
The totality of the circumstances here establish a sound and
“affirmative[]” basis (Collins, supra, 26 Cal.4th at p. 310) to
conclude that Morelos provided a knowing and intelligent
waiver of his right to a jury trial at the guilt, special
circumstance, and penalty phases of his trial.
G. Statutory Jury Trial Waiver Requirements
Morelos argues that the court committed statutory error
by failing to take a separate jury trial waiver for the special
circumstance allegations, as required under People v. Memro
(1985) 38 Cal.3d 658, 700–704.
Section 190.4, subdivision (a) requires a “ ‘separate,
personal waiver’ of the right to a jury for a special circumstance
allegation, above and beyond the standard guilt phase and
penalty phase waiver.” (Sivongxxay, supra, 3 Cal.5th at p. 176.)
This requirement is satisfied if the record shows the defendant
is aware that the waiver applies to guilt, special circumstances,
and penalty. It does not require a separate enunciated waiver
by the defendant. (Ibid.) In Sivongxxay, we held that the
statute was violated where “the term ‘special circumstance’ was
never mentioned at all” during the waiver colloquy. (Id. at
p. 178.)
Here, by contrast, the trial court told Morelos that he was
entitled to “12 individuals to make the factual determination
both as to your guilt and in the event that that jury would find
you guilty and determine one or more special circumstance to be
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true, that you would have a constitutional right to a jury to
determine the penalty for which the crimes would be
punishable.” This express reference to a jury finding on the
special circumstance allegations shows that Morelos was “aware
that the waiver applie[d] to each of these aspects of trial.”
(People v. Diaz (1992) 3 Cal.4th 495, 565; accord, People v.
Weaver (2012) 53 Cal.4th 1056, 1075 (Weaver); People v. Wrest
(1992) 3 Cal.4th 1088, 1103–1104.) There was no need for a
separate interrogation about the special circumstance jury trial
rights. (Wrest, at p. 1105.)
H. Fundamental Fairness, Reliability, and Eighth
Amendment Standards
Morelos presents several arguments challenging the
fairness and reliability of his capital trial and sentence and
asserts that his conviction, death eligibility finding, and death
verdict must be reversed. These arguments largely restate
Morelos’s prior challenges to the trial court’s rulings under a
more general unfairness rubric. Specifically, Morelos contends
that because he lacked two necessary protections in the criminal
justice system — defense counsel and a jury — the adversarial
process broke down and his trial failed to satisfy due process
standards, as well as the state’s independent interest in the
fairness, integrity, and heightened reliability of capital
proceedings. However, having concluded Morelos validly
exercised his right to self-representation and waived his right to
a jury trial, as well as his right to remain silent, these claims
similarly fail.
“Ordinarily, criminal defendants may waive rights that
exist for their own benefit. ‘Permitting waiver . . . is consistent
with the solicitude shown by modern jurisprudence to
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the defendant’s prerogative to waive the most crucial of rights.’ ”
(Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.)
Morelos broadly asserts that he could not waive his right
to due process and a fair trial, nor could he waive the “interest
of the justice system and community in reliable punishment.”
However, he did not do so. As explained ante, the trial court
ensured a valid waiver of his right to counsel and to a jury trial.
We have recognized that “[t]he tension between the right of self-
representation and the interest in ensuring a fair trial was a
matter of dispute in Faretta itself, and it persists to this day.
The rule announced by the Faretta majority, however, remains
the law of the land. [Citation.] This court, of course, may not
adopt an alternative view of what the Sixth Amendment
requires.” (People v. Butler (2009) 47 Cal.4th 814, 824, fn.
omitted.) Having knowingly and intelligently chosen to exercise
his constitutional right to self-representation and waived his
right to a jury trial, Morelos cannot now complain that his
choices compounded to deprive him of a fair trial.
Morelos claims “the prosecutor’s work with [him] to shape
his testimony in the prosecution’s favor constituted misconduct
and a due process violation.” In Morelos’s view, “the trial was a
performance directed by the prosecutor” during which the
prosecutor was permitted to present an untested, misleading
view of the evidence. While Morelos concedes that the
prosecutor was permitted to communicate with him, he asserts
“the prosecutor went far beyond any permissible line regarding
communication with a pro [se] defendant when he shaped
appellant’s inculpatory guilt phase testimony.” As Morelos
explains, the defense portion of the guilt phase began with him
taking the stand and the following exchange:
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“THE DEFENDANT: Well, I’d like to let the prosecution
question me. We discussed yesterday that a line of
questioning that we both more or less agreed on that
would cover issues not already covered.
“THE COURT: Well, he can only cross-examine you about
things that you have testified to on direct. Mr. Schon, you
waive any question and answer format and let the
defendant —
“THE PROSECUTOR: Yes, I do. And I’d like to state for
the record Mr. Morelos discussed with me yesterday
whether he wanted to testify. I indicated it was up to him
to testify. I can’t advise him of it. But if he did testify,
there are certain areas I would like to cover concerning the
torture aspects of the case with him and various factors
about the crime itself I would ask him questions about.
But his testifying is up to him. Right, Mr. Morelos?
“THE DEFENDANT: Yes, sir.
“THE COURT: He can only cross-examine you on areas
you covered in your direct. He waived the formality of
question and answer. So narrative, if you just want to tell
us what you want to tell us, that’s fine with me.”
Morelos then began his narrative testimony, describing,
inter alia, his intent to inflict “great bodily pain” upon
Anderson, his “intent to kill” Anderson, and clarifying that he
“raped” Anderson using “extreme force” even though he had
previously told police that he and Anderson had consensual sex.
Morelos claims that, “although the exact contents of the
discussion between appellant and the prosecutor the day before
appellant testified are unknown, the impact of the discussion
was to lighten the prosecution’s burden of proof at the guilt
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phase.” Morelos points to the distinctions between his pretrial
admissions to police and his trial testimony, asserting that such
changes were meant to fill evidentiary gaps identified by the
prosecution.
“While a pro se litigant may divide the duties or
representation as would any other lawyer, she may not insulate
herself from contact by the court or adversary counsel.”
(McMillan v. Shadow Ridge at Oak Park Homeowner’s Assn.
(2008) 165 Cal.App.4th 960, 967.) Thus, the prosecutor did not
commit misconduct by engaging with Morelos the day before he
took the stand. Notably, Morelos admits to otherwise initiating
communication with the prosecutor. On the day in question, it
was arguably necessary for Morelos and the prosecutor to confer
about some of the unique logistics that can arise when a self-
represented defendant testifies in his or her own defense. For
instance, a conversation between the prosecutor and Morelos
about Morelos testifying in narrative form could have benefitted
Morelos, and Morelos fails to establish misconduct based on his
mere communication with the prosecutor. Moreover, Morelos
does not show that any alleged overstepping by the prosecutor
affected his decision to waive his right against self-
incrimination. The prosecutor told the trial court that “Morelos
discussed with me yesterday whether he wanted to testify” and
“I indicated it was up to him to testify.” There is nothing from
the exchange to indicate that the prosecution acted improperly.
Indeed, to the contrary, the prosecutor repeatedly stated that he
had advised Morelos that he could not give him legal advice as
to whether to testify and that the decision to testify was up to
Morelos and then asked him to confirm the same on the record,
which he did. Having made the choice to testify, Morelos was
free to admit guilt during his trial testimony. (Bloom, supra,
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48 Cal.3d at p. 1222.) On this record, Morelos’s accusations of
prosecutorial misconduct prove unpersuasive.
Morelos also accuses the prosecutor of presenting
“incomplete, misleading testimony regarding the marks on the
victim’s genitals, which was relevant to the torture special
circumstances.” He points out that, at the preliminary hearing,
Dr. Pakdaman testified on direct examination that bruise marks
on Anderson’s genitals were partially “superimposed by . . .
postmortem lividity,” meaning the natural pooling of blood that
occurs after death. During cross-examination at the
preliminary hearing by then-appointed defense counsel, Dr.
Pakdaman conceded it was difficult to decipher how many of the
genital markings were caused by bruising versus lividity; “there
is some bruising plus lividity, which are sort of mixed.” At
Morelos’s bench trial, the prosecutor elicited similar testimony
regarding the bruising on Anderson’s genitals, explaining that
bruising “is usually discoloration of the skin while an individual
is alive,” but Dr. Pakdaman provided no testimony regarding
lividity. The prosecutor’s trial questions focused on the
“extensiveness of the bruising in relation to the pain.”
Morelos argues that the prosecutor’s selective questioning
presented an impermissibly “misleading version of the facts”
that was central to the torture-murder special-circumstance
allegation.
Morelos did not object to the prosecutor’s questioning of
Dr. Pakdaman regarding the bruising on Anderson’s genitals.
As a general rule, a defendant waives a claim of prosecutorial
misconduct absent a timely and specific objection unless an
objection would be futile. (People v. Hill (1998) 17 Cal.4th 800,
820.) Nevertheless, Morelos’s claim lacks merit. The
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prosecutor’s examination of Dr. Pakdaman regarding bruising
did not constitute prosecutorial misconduct. Dr. Pakdaman’s
testimony that bruising was evident on Anderson’s genitalia
was neither false nor misleading; it was entirely consistent with
his preliminary hearing testimony. The prosecutor did not
commit misconduct by failing to explore how many of the genital
markings were caused by bruising versus lividity. Morelos, like
his counsel at the preliminary hearing, was free to question Dr.
Pakdaman about lividity to fill in any perceived evidentiary
gaps or inconsistencies for the trial court.
Morelos faults the trial court for not sufficiently
maintaining a fair, adversarial trial process at both the guilt
and penalty phases, allowing Morelos’s “testimony to become a
free-for-all,” but this claim also fails. He claims the trial court
should not have permitted the prosecution to ask Morelos
leading questions on cross-examination because Morelos was
essentially a prosecution witness. (See Evid. Code, §§ 767, subd.
(a) [except under “special circumstances,” leading questions may
only be asked on cross-examination], 773, subd. (b) [“The cross-
examination of a witness by any party whose interest is not
adverse to the party calling him is subject to the same rules that
are applicable to the direct examination”].) However, when
questioned by the prosecution, Morelos was being cross-
examined. The fact that he provided testimony favorable to the
prosecution did not convert him into a nonadverse party. As
stated, during the defense case, Morelos was free to waive his
right against self-incrimination and testify in incriminating
narrative form; the fact that he did so did not deprive the
prosecution of its right to ask him leading questions on cross-
examination.
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Morelos contends the procedural requirements articulated
in Bloom, supra, 48 Cal.3d 1194 were not met and his
convictions and sentence must be overturned as
unconstitutionally unreliable. In Bloom, the defendant opted to
represent himself during the penalty phase and urged the jury
to return a death verdict. (Id. at pp. 1215–1216, 1218.) On
appeal, he argued in part that the failure to present mitigating
evidence during the penalty phase, combined with his personal
request for a death verdict, “offended the state’s interest in
ensuring the reliability of capital penalty determinations.” (Id.
at p. 1218.) We rejected the argument. We observed that “[t]he
threat of appellate reversal would be not merely ineffective but
counterproductive” under these circumstances. (Id. at p. 1227.)
“A knowledgeable defendant desiring to avoid the death penalty
could make a timely request for self-representation under
Faretta, supra, 422 U.S. 806, and then decline to present any
mitigating evidence at the penalty phase, secure in the
knowledge that any death judgment would be reversed by this
court, while a defendant genuinely desiring death could
circumvent the rule by presenting a bare minimum of mitigating
evidence.” (Ibid.) Instead, “the required reliability is attained
when the prosecution has discharged its burden of proof at the
guilt and penalty phases pursuant to the rules of evidence and
within the guidelines of a constitutional death penalty statute,
the death verdict has been returned under proper instructions
and procedures, and the trier of penalty has duly considered the
relevant mitigating evidence, if any, which the defendant has
chosen to present. A judgment of death entered in conformity
with these rigorous standards does not violate the Eighth
Amendment reliability requirements.” (Id. at p. 1228.)
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Morelos does not meaningfully distinguish his defense
strategy during the guilt and penalty phases from the
defendant’s penalty phase strategy in Bloom and we therefore
reject his assertion that his trial lacked the procedural
protections required by Bloom. While Morelos represented
himself throughout his trial and testified during both the guilt
and penalty phases, providing incriminating details of his
crimes, it was within his rights to do so. As we stated in Bloom,
a court cannot compel a defendant to put on mitigating evidence.
(Bloom, supra, 48 Cal.3d at p. 1227.) Moreover, Morelos’s
strategy did not ensure the outcome of his trial nor compromise
the trial court’s duty to hold the prosecution to its burden of
proof. The court was free to reject Morelos’s testimony and did
so, in part. Before announcing its penalty verdict, the trial court
noted that it “sought guidance from the California Supreme
Court in the case of People versus Bloom that can be found at
48 Cal.3d 1194.” The trial court thereafter refused to consider
prior offenses Morelos claimed to have committed that could not
be proved by independent evidence. On this record, like in
Bloom, the required reliability was obtained at both the guilt
and penalty phases of Morelos’s trial.
In contending his trial was an unreliable “empty charade,”
Morelos also points to the fact that he was denied advisory
counsel and the court characterized his trial as a “slow plea.”
However, we have determined that the denial of Morelos’s
request for “assistant counsel” did not affect the outcome of his
trial. And we have rejected Morelos’s claim that the trial
proceedings amounted to a slow plea in violation of section 1018.
This derivative claim is made no more persuasive by its
reframing.
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I. Meaningful Review of the Penalty
Determination
Morelos contends his death sentence must be vacated
because he was denied independent review of the penalty
verdict. He insists that we must read into section 190.4,
subdivision (e) “a mechanism for independent review of a trial
court’s penalty verdict and remand this case so that the review
can take place, or the Court must declare the California statute
unconstitutional as applied to cases in which a jury trial has
been waived.” According to Morelos, to satisfy due process
standards, a second judge must review the sentencing judge’s
penalty verdict. Furthermore, if section 190.4, subdivision (e) is
read not to apply to judge-sentenced defendants, Morelos
contends it unconstitutionally deprives him of equal protection
of the laws.
Under section 190.4, subdivision (e), when a verdict of
death has been rendered, “the defendant shall be deemed to
have made an application for modification of such verdict or
finding . . . . In ruling on the application, the judge shall review
the evidence, consider, take into account, and be guided by the
aggravating and mitigating circumstances referred to in Section
190.3, and shall make a determination as to whether the jury’s
findings and verdicts that the aggravating circumstances
outweigh the mitigating circumstances are contrary to law or
the evidence presented. The judge shall state on the record the
reasons for his findings.” “[T]his court and the United States
Supreme Court have cited the provisions of section 190.4,
subdivision (e), as an additional safeguard against arbitrary and
capricious imposition of the death penalty in California.”
(People v. Lewis (2004) 33 Cal.4th 214, 226.)
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At the conclusion of the penalty phase of Morelos’s trial,
the trial court detailed its findings as to each factor relevant to
a penalty determination of death enumerated in section 190.3.
(See § 190.3, factors (a)–(k).) The court then determined the
“factors in aggravation substantially outweigh the factors in
mitigation.” As such, the court determined the penalty should
be death. The court thereafter explained to Morelos his right to
file a motion for a new trial and his right to move to modify the
judgment. The court then set a date for any such motions. At
the subsequent proceedings, the trial court addressed Morelos
as follows, “This is the time if you so desire that you could make
a motion for the court to reconsider the weighing of the factors
in aggravation against the factors in mitigation. Do you wish
the court to do that?” Morelos answered “No,” and the court
proceeded to sentencing without objection.
Morelos’s claims are similar to those we rejected in
Weaver, supra, 53 Cal.4th 1056. In Weaver, before accepting a
jury trial waiver, the trial court advised the defendant that he
would not be entitled to a modification hearing under section
190.4. (Id. at p. 1090.) The defendant indicated he understood.
(Ibid.) After imposing a penalty of death, the trial court, out of
“ ‘an abundance of caution’ ” conducted a hearing under section
190.4, reviewing the mitigating and aggravating evidence but
declining to modify the verdict. (Id. at pp. 1090–1091.) We were
unpersuaded by the defendant’s claim that he did not receive a
proper hearing under section 190.4, subdivision (e).
First, we determined that the Weaver defendant forfeited
his statutory claim by failing to object at trial. (Weaver, supra,
53 Cal.4th at p. 1091.) We nevertheless proceeded to reject his
argument on the merits. We pointed out that “ ‘ “[w]e have
never decided whether a defendant who waives a jury trial on
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the issue of penalty is entitled to a modification hearing under
section 190.4, subdivision (e).” ’ [Citation.]. . . . In Horning, the
trial court had given a detailed statement of reasons for its
penalty phase verdict, and we observed that ‘[n]othing in section
190.4 suggests the court must state its reasons twice.’ ” (Ibid.,
quoting People v. Horning (2004) 34 Cal.4th 871, 912 (Horning).)
Since the trial court in Weaver stated its reasons twice, there
was no conceivable error. (Weaver, at p. 1091.) Nor did the
Weaver defendant persuade us “that because section 190.4,
subdivision (e), does not logically apply to a court trial, the
California death penalty scheme is ‘unconstitutional in that it
fails to provide a mechanism for an independent review of a trial
court's penalty phase verdict.’ ” (Ibid.) Observing that the
defendant cited no supportive authority, we declined to conclude
that a defendant who waives a jury trial has a constitutional
right to independent review of the court’s verdict. (Ibid.) In
sum, the Weaver defendant made the decision to waive a jury
and forgo a section 190.4 hearing; “[p]ermitting him to make
that decision did not violate his rights.” (Id. at p. 1091.)
Morelos, like the defendant in Weaver, waived any claim of
error under section 190.4 by expressly refusing the trial court’s
offer to review its penalty verdict. (See Weaver, supra, 53 Cal.4th
at p. 1091; see also Horning, supra, 34 Cal.4th at p. 912.) Indeed,
Morelos acknowledges that we have previously deemed such claims
of error under section 190.4 waived by the failure to object. As for
Morelos’s constitutional claim, we are not persuaded that
independent review of his penalty verdict at the trial court level
was constitutionally mandated by due process or equal protection
principles. Like in Weaver, Morelos “cites no authority holding that
a defendant who waives a jury has a constitutional right to an
independent review of the court’s verdict.” (Weaver, at p. 1091.)
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Moreover, the trial court clearly stated its reasons for Morelos’s
penalty phase verdict on the record and Morelos fails to explain
how an additional trial level review by a second judge would
increase the reliability of his verdict, which is subject to our
automatic review (§ 1239, subd. (b)). Nor has Morelos shown that
it is impermissible for the state to distinguish, for purposes of the
review contemplated by section 190.4, subdivision (e), between a
penalty determination rendered by a jury and one rendered by a
judge. Morelos shows no greater entitlement to relief than the
defendant in Weaver. Similar to the Weaver defendant, having
validly waived his right to a jury trial and declined the trial court’s
offer to reconsider his penalty verdict, Morelos fails to persuade us
that his rights were violated. (Weaver, at p. 1091.)
J. California’s Death Penalty Statute Does Not
Violate the United States Constitution
Morelos offers several constitutional challenges to
California’s death penalty scheme, acknowledging that we have
previously rejected them. Morelos provides no persuasive
reason for us to either reconsider our decisions in those cases or
draw a sufficient distinction between the scope of those decisions
and the facts in this case. We reiterate our prior decisions.
Morelos asserts that the special circumstances contained
in section 190.2 fail to meaningfully narrow the class of death-
eligible murderers in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.
This claim is meritless. (See People v. McDaniel (2021)
12 Cal.5th 97, 155 (McDaniel); People v. Steskal (2021)
11 Cal.5th 332, 379; People v. Capers (2019) 7 Cal.5th 989,
1012–1013 (Capers); People v. Ghobrial (2018) 5 Cal.5th 250,
291 (Ghobrial).) Nor does section 190.3, factor (a), permitting
the sentencer to consider the “circumstances of the crime” when
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making its penalty determination, result in the arbitrary and
capricious imposition of the death penalty. (McDaniel, at p. 155;
Steskal, at p. 379; Capers, at p. 1013; Ghobrial, at p. 291.)
Morelos contends his death sentence is unconstitutional
because it did not require findings beyond a reasonable doubt,
“not only that the factual bases for its decision are true, but that
death is the appropriate penalty.” “ ‘Neither the federal nor the
state Constitution requires that the penalty phase jury find
beyond a reasonable doubt that aggravating factors outweigh
mitigating factors before determining whether or not to impose
a death sentence,’ and the United States Supreme Court’s Sixth
Amendment jurisprudence, including Apprendi [v. New Jersey
(2000)] 530 U.S. 466, does not demand such a requirement.
(People v. Parker (2017) 2 Cal.5th 1184, 1232 [218 Cal.Rptr. 3d
315, 395 P.3d 208].)” (Ghobrial, supra, 5 Cal.5th at pp. 291–
292.) Moreover, the death penalty statute is not
unconstitutional because “ ‘it does not require . . . findings
beyond a reasonable doubt that an aggravating circumstance
(other than Pen. Code, § 190.3, factor (b) or (c) evidence) has
been proved, that the aggravating factors outweighed the
mitigating factors, or that death is the appropriate sentence.’ ”
(People v. Dalton (2019) 7 Cal.5th 166, 267; see also McDaniel,
supra, 12 Cal.5th at pp. 155–156.)
Contrary to Morelos’s arguments, as we have repeatedly
stated, intercase proportionality review is not constitutionally
required in capital cases. (McDaniel, supra, 12 Cal.5th at
p. 157; Capers, supra, 7 Cal.5th at pp. 1016–1017; Ghobrial,
supra, 5 Cal.5th at p. 293.) Nor does California’s death penalty
scheme violate equal protection principles by treating capital
defendants and noncapital defendants differently. “Because
capital defendants are not similarly situated to noncapital
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defendants, California does not deny capital defendants equal
protection by providing certain procedural protections to
noncapital defendants that are not provided to capital
defendants.” (People v. Jones (2012) 54 Cal.4th 1, 87 (Jones); see
also McDaniel, at p. 157.)
Finally, Morelos’s allegation that California’s use “of the
death penalty as a regular form of punishment” violates
international law is meritless. “ ‘California does not employ
capital punishment in such a manner.’ ” (Jones, supra,54 Cal.4th at p. 88; see also McDaniel, supra, 12 Cal.5th at
p. 157; Ghobrial, supra, 5 Cal.5th at p. 293.)
K. Newly Conferred Discretion on the Firearm and
Serious Felony Enhancements
1. Senate Bill No. 620 (2017–2018 Reg. Sess.)
Morelos contends, and the Attorney General agrees, that
Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill No.
620), which was enacted after Morelos was sentenced, applies
retroactively to his case.
On January 1, 2018, Senate Bill No. 620 became effective.
(Stats. 2017, ch. 682, §§ 1 & 2.) The bill vested courts with
authority to exercise their discretion to strike or dismiss firearm
enhancements imposed under section 12022.5 (see § 12022.5,
subd. (c), as amended by Stats. 2017, ch. 682, § 1). Prior to the
enactment of Senate Bill No. 620, these enhancements were
mandatory. (§ 12022.5, former subd. (c).)
We agree with the parties that a limited remand is
appropriate to allow the trial court to consider its newly
conferred discretion to strike Morelos’s five-year section
12022.5, subdivision (a) firearm enhancement.
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2. Senate Bill No. 1393 (2017–2018 Reg. Sess.)
Morelos similarly contends, and the Attorney General
agrees, that Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate
Bill No. 1393) requires his case to be remanded so the trial court
can consider whether to strike his two 5-year prior serious felony
enhancements.
At the time Morelos was sentenced, the court was required
under section 667, subdivision (a), to enhance the sentence
imposed for conviction of a serious felony by five years for each
qualifying prior serious felony conviction. On September 30,
2018, the Governor signed Senate Bill No. 1393 (effective
January 1, 2019), amending sections 667, subdivision (a) and
1385, subdivision (b) (Stats. 2018, ch. 1013, §§ 1, 2) to permit a
trial court to exercise discretion to strike or dismiss prior serious
felony enhancements “in the furtherance of justice.” (§ 1385,
subd. (b)(1), as amended by Stats. 2018, ch. 1013, § 2.)
The Attorney General concedes that the amendments
apply retroactively to Morelos’s case. We agree with the parties
that a limited remand is appropriate for the trial court to
consider whether to exercise its recently conferred discretion.
L. Prior Prison Term Enhancements
Morelos asserts, and the Attorney General concedes, that
recently enacted Senate Bill No. 136 (2019–2020 Reg. Sess.)
(Senate Bill No. 136), which narrowed who is eligible for the one-
year enhancement under section 667.5, subdivision (b), applies
retroactively to his case. As stated, the court found that Morelos
served one prior prison term for assault with a deadly weapon
by means of force likely to produce great bodily injury within the
meaning of section 667.5, subdivision (a), which provides for a
three-year enhancement. The court also found Morelos to have
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PEOPLE v. MORELOS
Opinion of the Court by Groban, J.
served a prior prison term for first degree burglary within the
meaning of section 667.5, subdivision (b), which provides for a
one-year enhancement. The court stayed punishment for these
enhancements.
On October 8, 2019, the Governor signed Senate Bill No.
136, which amended section 667.5, effective January 1, 2020.
(Stats. 2019, ch. 590, § 1.) Senate Bill No. 136 narrowed
eligibility for the one-year prior prison term enhancement to
those who have served a prior prison sentence for a sexually
violent offense. (§ 667.5, subd. (b), as amended by Stats. 2019,
ch. 590, § 1.)4
Morelos’s prior prison term for first degree burglary was
not for a sexually violent offense. (See Welf. & Inst. Code, §
6600, subd. (b) [defining “Sexually violent offense”].) Therefore,
the parties agree, as do we, that Morelos’s one-year prior prison
term enhancement should be stricken.
However, the parties disagree over a related question.
Namely, whether, if on remand the court again imposes the five-
year section 667, subdivision (a) serious felony enhancement for
the assault with a deadly weapon, the trial court must stay or
strike the remaining three-year prior prison term enhancement
stemming from the same offense. Since this question will only
arise if the trial court declines to strike the serious felony
enhancement at issue, we need not consider it at this time.
4
Section 667.5 was amended again in 2021 (Stats. 2021, ch.
626, § 28), but those amendments have no bearing on the
analysis of the issue before us.
68
PEOPLE v. MORELOS
Opinion of the Court by Groban, J.
III. DISPOSITION
For the reasons stated above, we vacate as unauthorized
the one-year prior prison term enhancement imposed under
former section 667.5, subdivision (b) and remand to the trial
court for resentencing consistent with this opinion (see ante, pts.
II.K. and II.L.). Following resentencing, the trial court is
directed to prepare an amended abstract of judgment and
forward it to the Department of Corrections and
Rehabilitation. In all other respects, the judgment (including
the judgment of death) is affirmed.
GROBAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
JENKINS, J.
GUERRERO, J.
69
PEOPLE v. MORELOS
S051968
Dissenting Opinion by Justice Liu
A trial court may not accept a criminal defendant’s waiver
of the constitutional right to a jury trial unless the waiver is
“knowing and intelligent, that is, ‘ “ ‘made with a full awareness
both of the nature of the right being abandoned and the
consequences of the decision to abandon it.’ ” ’ ” (People v.
Collins (2001) 26 Cal.4th 297, 305 (Collins); see U.S. Const., 6th
Amend.; Cal. Const., art. I, § 16.) A reviewing court may uphold
the validity of a jury trial waiver only “ ‘if the record
affirmatively shows that it is voluntary and intelligent under
the totality of the circumstances.’ ” (Collins, at p. 310, italics
added.) Applying these standards, I cannot conclude on the
record before us that defendant Valdamir Fred Morelos validly
waived his right to a jury trial in this capital case. I respectfully
dissent from today’s affirmance of the judgment.
I.
The record before us presents three significant concerns.
The first is the spare nature of the waiver colloquy. We have
emphasized “the value of a robust oral colloquy in evincing a
knowing, intelligent, and voluntary waiver of a jury trial.”
(People v. Sivongxxay (2017) 3 Cal.5th 151, 169 (Sivongxxay).)
And we have urged trial courts to “advise a defendant of the
basic mechanics of a jury trial in a waiver colloquy, including
but not necessarily limited to the facts that (1) a jury is made up
of 12 members of the community; (2) a defendant through his or
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PEOPLE v. MORELOS
Liu, J., dissenting
her counsel may participate in jury selection; (3) all 12 jurors
must unanimously agree in order to render a verdict; and (4) if
a defendant waives the right to a jury trial, a judge alone will
decide his or her guilt or innocence.” (Ibid.) It is true that we
have not insisted on a rigid rubric of advisements, nor have we
required advisement of every one of these four points in order to
uphold a jury trial waiver. But the record in this case is so
devoid of meaningful advisement that there is no sound basis to
infer — much less any “affirmative[]” indication (Collins, supra,
26 Cal.4th at p. 310) — that Morelos knowingly and
intelligently waived his right to a jury trial.
At a hearing on August 11, 1995, after a discussion among
the prosecutor, Morelos, and Judge Ball regarding the jury
waiver, Judge Ball said the case would be reassigned to Judge
Creed because Judge Ball was unwilling to accept a jury waiver
for both the guilt and penalty phases. Judge Ball then engaged
Morelos in a waiver colloquy. Judge Ball told Morelos that he
had a right to a jury of 12 individuals, but he did not explain
that the jurors had to be unanimous, that Morelos would
participate in jury selection, and that the jurors would be
selected from members of the community. He did not explain
that without a jury, Judge Creed alone would make all
determinations about Morelos’s guilt, special circumstances,
and penalty. Judge Ball then accepted Morelos’s waiver.
Once the matter was reassigned to Judge Creed, Judge
Creed confirmed Morelos’s waiver. Judge Creed did not explain
any features of a jury trial. He merely confirmed that Morelos
knew he had an “absolute constitutional right” to a jury and that
he understood that right. After the guilt phase, Judge Creed
again confirmed that Morelos did not want to empanel a jury for
the penalty phase but again did not explain the jury right.
2
PEOPLE v. MORELOS
Liu, J., dissenting
These three colloquies — one with Judge Ball and two
with Judge Creed — were more lacking in substance, either
individually or collectively, than any colloquies we have
considered in upholding a jury trial waiver. In People v. Weaver
(2012) 53 Cal.4th 1056 (Weaver), the defendant waived his right
to a jury trial by completing a written waiver explaining that
the court would determine the defendant’s guilt or innocence
and that if the court found the defendant guilty and found a
special circumstance to be true, the court would determine the
appropriate penalty. (Id. at p. 1070.) In court, the trial judge
again explained that he alone would determine “ ‘all legal
findings,’ ” including the special circumstance. (Ibid.) He
further emphasized that the defendant had a right to a
unanimous jury. (Ibid.) We held that the defendant’s waiver
was knowing and intelligent, even though the defendant was not
expressly advised of his right to participate in jury selection.
In People v. Cunningham (2015) 61 Cal.4th 609(Cunningham), the defendant waived his right to a guilt phase
jury trial. (Id. at p. 636.) The trial judge informed the defendant
of his right to a unanimous jury and that in the absence of a
jury, the judge alone would make a determination of guilt or
innocence. (Ibid.) He further advised the defendant that “it
could be easier for the prosecution to convince only one person,
as opposed to 12.” (Ibid.) We held that this waiver was knowing
and intelligent and that the trial court’s colloquy was “a full
explanation . . . of the right and the consequences of the waiver.”
(Id. at p. 637.)
In Sivongxxay, the defendant waived his right to a jury at
a pretrial hearing. (Sivongxxay, supra, 3 Cal.5th at p. 164.) The
trial judge informed the defendant that he had a right to a trial
by jury, that the jury would be made up of 12 members of the
3
PEOPLE v. MORELOS
Liu, J., dissenting
community, that he would participate in the selection of the
jury, and that the judge would determine his guilt or innocence
and any penalty in the absence of a jury. (Id. at p. 167.) We
held that this colloquy was sufficient and that it was not
necessary to inform the defendant of the unanimity
requirement. (Id. at p. 168.) The court also held that the trial
judge’s failure to specifically mention that the judge would
determine the presence of special circumstances did not make
the defendant’s waiver invalid. (Id. at p. 171.) “There is no
additional constitutional requirement that a defendant be
specifically advised of the specific charges, enhancements,
allegations, or other issues to which a general jury waiver will
apply.” (Ibid.; but see id. at p. 206 (conc. & dis. opn. of Liu, J.);
id. at p. 219 (conc. & dis. opn. of Cuéllar, J.).)
In People v. Daniels (2017) 3 Cal.5th 961 (Daniels), the
defendant sought to waive his right to a jury trial at the guilt
and penalty phases of trial. (Id. at p. 986 (conc. & dis. opn. of
Cuéllar, J.).) The trial judge engaged the defendant in a
colloquy explaining that he would determine the defendant’s
guilt or innocence, the presence of special circumstances, and
the penalty. (Id. at pp. 987–989.) The defendant repeatedly,
even emphatically, affirmed his intent to waive a jury trial. (Id.
at p. 995.) However, the trial judge never explained that a jury
is made up of 12 members of the community, that the jury must
be unanimous, or that the defendant would have the right to
participate in jury selection. (Id. at p. 994.). We upheld the jury
waiver with respect to the guilt phase but not with respect to
the penalty phase. (Id. at pp. 966–967 (per curiam).)
In this case, neither Judge Ball nor Judge Creed informed
Morelos that he could participate in jury selection, that the jury
must be unanimous in order to render a verdict, or that a judge
4
PEOPLE v. MORELOS
Liu, J., dissenting
alone would decide his guilt and the appropriate penalty in the
absence of a jury. At the very least, the record of advisement
here leaves as much doubt about the validity of the waiver as
the record in Daniels, where we refused to uphold the waiver
with respect to the penalty phase. Even if it were true that
“[t]he waiver colloquy here was . . . more substantial than in
Daniels” (maj. opn., ante, at p. 50), that is not saying much. (Cf.
Daniels, supra, 3 Cal.5th at p. 994 (conc. & dis. opn. of Cuéllar,
J.) [“The court did not, prior to accepting the waiver, elaborate
on what a jury trial entails, other than that it is not the same
thing as a trial before a judge. The court did not explain
anything about the nature of the jury — for example, what
constitutes a jury, how a jury is selected, or that jury members
must be impartial and their verdict unanimous.”].) Whatever
daylight there is between Daniels and this case, the colloquies
here, as in Daniels, leave us in the dark as to whether Morelos’s
jury trial waiver was knowing and intelligent.
Second, Morelos was self-represented. In prior cases, the
role of counsel has played an important role in our analysis. In
Weaver, the defendant was represented by counsel and stated
on the record that his attorney had explained the meaning of a
jury trial versus a court trial. (Weaver, supra, 53 Cal.4th at
p. 1070.) One of his attorneys explained that they had discussed
the jury waiver for “about two hours” the day before. (Id. at
p. 1071.) And the trial judge gave the defendant “ample time
. . . to discuss [the jury waiver] with counsel.” (Id. at p. 1075.)
We held that “the court and defense counsel fully explained to
defendant what he was waiving.” (Id. at p. 1074.) Similarly, the
defendant in Cunningham was represented by counsel and had
discussed the jury waiver with counsel. (Cunningham, supra,
61 Cal.4th at p. 636.)
5
PEOPLE v. MORELOS
Liu, J., dissenting
In Sivongxxay, the defendant was represented by counsel,
although there was no evidence that the defendant ever
discussed his jury waiver with counsel. (Sivongxxay, supra, 3
Cal.5th at p. 205 (conc. & dis. opn. of Liu, J.).) Nevertheless,
this court considered the mere fact that the defendant was
represented by counsel as one of the circumstances that
confirmed that the defendant’s waiver was knowing and
intelligent. (Id. at p. 173, fn. 8.)
In Daniels, the defendant was not represented by counsel
at the time of his jury waiver, nor did he have any conversations
with any counsel about his waiver. (Daniels, supra, 3 Cal.5th at
p. 997 (conc. & dis. opn. of Cuéllar, J.).) This was a relevant
factor in the ultimate determination that the defendant did not
knowingly and intelligently waive his right to a penalty phase
jury trial. (See id. at p. 1029 (conc. opn. of Kruger, J.); see also
id. at p. 1024 (conc. & dis. opn. of Corrigan, J.) [noting that lack
of counsel is “undoubtedly . . . relevant” because counsel “may
explain the features of a jury trial, the nuances of jury selection,
how a jury is likely to view the facts of the case, and the
possibility of a mistrial”].) While a jury waiver is not
automatically presumed valid because a defendant has counsel,
lack of counsel is “one less assurance that [the defendant
underst[ands] the nature of the right he [is] relinquishing and
the effects of doing so.” (Id. at p. 997 (conc. & dis. opn. of
Cuéllar, J.).)
Here, as in Daniels, the trial judges did not ask whether
Morelos ever received any information about waiving his jury
right. (See Daniels, supra, 3 Cal.5th at p. 1029 (conc. opn. of
Kruger, J.); id. at p. 997 (conc. & dis. opn. of Cuéllar, J.) [“we
decline the People’s invitation to speculate as to possible
discussions with counsel which would have had no bearing on
6
PEOPLE v. MORELOS
Liu, J., dissenting
decisions made or topics even mentioned on the record during
the course of counsel’s representation”].) Morelos’s lack of
counsel makes it even more concerning that the waiver
colloquies were so devoid of substance.
To be sure, a defendant’s independent legal knowledge is
relevant, and Morelos had experience with the criminal justice
system and “exhibited some legal knowledge” in his filings in
this case. (Maj. opn., ante, at p. 51.) But in our past cases, there
was evidence that the defendants had heard express
explanations of their right to a jury in previous encounters with
the criminal justice system. (Daniels, supra, 3 Cal.5th at
p. 1023 (conc. & dis. opn. of Corrigan, J.) [prior explanation of
the unanimity requirement]; Sivongxxay, supra, 3 Cal.5th at
p. 167 [prior written jury waiver].) Here, there is no evidence of
what Morelos was told about his jury rights in his prior cases.
There is no evidence that he was ever adequately informed of
the nature of the jury trial right in any of his prior prosecutions.
While he did enter guilty pleas in past cases, those pleas were
eight and 14 years before the jury waiver in this case.
Third, I am concerned about the extent to which the
prosecutor drove the process of presenting the issue of jury
waiver to the court. The prosecutor initially brought up the idea
of proceeding with a court trial, saying he had spoken with
Morelos and that they “would be likely to waive jury.” The
prosecutor asked Morelos if that was his understanding, and
Morelos responded without elaboration that it was. When the
trial judge expressed hesitation as to the penalty phase jury
waiver, the prosecutor pushed back, saying he preferred a court
trial on both phases to avoid going through voir dire with a pro
se defendant. At the following hearing, the judge asked whether
the parties intended to pursue a court trial, and the prosecutor
7
PEOPLE v. MORELOS
Liu, J., dissenting
again responded in the affirmative and inquired about having
the case reassigned. Aside from his comment confirming the
prosecutor’s first statement, Morelos did not participate in these
conversations, although he was present.
Today’s opinion says this case is unlike Daniels, where “it
was the judge who introduced the idea of a jury trial waiver.”
(Maj. opn., ante, at p. 49.) But how does the fact that the waiver
here was prosecutor-driven instead of “judge-driven” (ibid.) in
any way suggest it was knowing and intelligent?
The only other case of which I am aware in which the
record shows the prosecutor made the first reference to
proceeding with a court trial is Cunningham. However, the
record there was not clear whether the prosecutor had been the
first to raise the idea of proceeding without a jury; the
prosecutor only stated that “he had discussed with defense
counsel the possibility of having a bench trial for the guilt
phase.” (Cunningham, supra, 61 Cal.4th at p. 636.) Notably,
defense counsel confirmed this and brought the issue up again,
unprompted, at a later hearing after speaking to the defendant
and obtaining a written jury waiver. (Ibid.) Then, at a third
hearing, the trial judge asked the defendant to further confirm
his intent to waive a jury for the guilt phase. (Ibid.) The
defendant did so and confirmed that he had discussed the
matter with his attorney. (Ibid.) Only then, and after engaging
the defendant in a colloquy, did the trial judge accept the
defendant’s jury waiver. (Ibid.) Even if the prosecutor initially
raised the issue, the repeated confirmations by both defense
counsel and the defendant, along with the defendant’s
conversations with counsel and the relatively thorough colloquy,
made the prosecutor’s initial suggestion less of a concern.
8
PEOPLE v. MORELOS
Liu, J., dissenting
The prosecutor in this case was far more involved and
insistent in seeking a court trial. The prosecutor pursued this
topic through multiple preliminary hearings, actively offered
justifications for a court trial instead of a jury trial, and even
proposed that the case be reassigned to a different trial judge
who would be less hesitant to proceed with a full court trial. The
prosecutor’s desire to avoid going through jury selection with a
self-represented defendant has no bearing on whether Morelos’s
waiver was informed; it simply suggests the prosecutor, not
Morelos, was determined to have a court trial. It is true that
Morelos appeared intent on pleading guilty, but the record
indicates that it was the prosecutor, not Morelos, who drove the
jury waiver process, to the point of getting the case reassigned
to a different judge specifically for this purpose. The concern is
not that Morelos was pressured into waiving a jury or that his
waiver was involuntary. It is that “multiple conversations”
between Morelos and a prosecutor intent on avoiding a jury trial
(maj. opn., ante, at p. 47) provide no basis to infer that Morelos
was properly informed about the nature of a jury trial.
II.
In reaching a contrary holding, today’s decision first looks
to Judge Ball’s waiver colloquy. (Maj. opn., ante, at p. 43.) But
that colloquy is threadbare. At an August 11, 1995 hearing,
Judge Ball said the following: “Now, you understand that you
have an absolute constitutional right to a trial by a jury. In
other words, 12 individuals to make the factual determination
both as to your guilt and in the event that that jury would find
you guilty and determine one or more special circumstances to
be true, that you would have a constitutional right to a jury to
determine the penalty for which the crimes would be
punishable. Now, that’s been explained to you and you
9
PEOPLE v. MORELOS
Liu, J., dissenting
understand that, correct?” Morelos answered in the affirmative.
The court then asked, “In other words, you’ve made that decision
freely and voluntarily based upon your own knowledge and
understanding of the facts, and the law that’s been explained to
you and that you understand?” Again, Morelos answered in the
affirmative.
That was the entirety of the advisement provided to
Morelos. No other information was provided, and there was no
other discussion about the mechanics of or right to a jury trial.
Notwithstanding the extensive parsing of these colloquies in
today’s opinion (maj. opn., ante, at pp. 43‒44), the sum total of
the information Morelos received from the colloquies was that a
jury is composed of 12 individuals who make a factual
determination as to guilt and decide on the penalty. This,
according to today’s opinion, conveys “the core nature of a jury
trial” (id. at p. 44) — never mind the requirement of jury
unanimity, the defendant’s right to participate in jury selection,
the fact that jurors are chosen from members of the community,
and the fact that waiving the jury means a judge alone would
decide guilt and penalty.
The court suggests that Morelos agreed twice in that
colloquy that the jury right had been explained to him and that
he understood it. (Maj. opn., ante, at p. 43.) But the first of the
two questions posed to Morelos — “Now, that’s been explained
to you and you understand that, correct” — refers to the
information the court just provided. The second question — “In
other words, you’ve made that decision freely and voluntarily
based upon your own knowledge and understanding of the facts,
and the law that’s been explained to you and that you
understand” — simply asked Morelos to confirm that he was
entering his waiver based on whatever information had been
10
PEOPLE v. MORELOS
Liu, J., dissenting
provided to him and whatever he may have understood about
that information. It provides no indication of what information
had been conveyed to Morelos and what, if anything, he
understood about that information.
Second, the court notes that both Judge Ball and the
prosecutor referred to jury selection in a prior hearing. (Maj.
opn., ante, at p. 45.) Specifically, in the July 27, 1995 hearing
at which the prosecutor introduced the idea of jury waiver, the
prosecutor stated in Morelos’s presence that a court trial was
preferred to “avoid the necessity of going through voir dire on a
jury with a pro per.” In the next hearing, conducted August 2,
1995, Judge Ball made two passing references to jury selection,
both in the context of calendar planning. First, he said, “I
haven’t discussed with you both scheduling and just when you
perceive this matter would be ready for trial, and at what time,
what stage juries would be impanelled and the attendant issues
in terms of jury selection.” Second, seven pages later in the
reporter’s transcript, Judge Ball spoke hypothetically about
potential scheduling conflicts if no department was willing to
take both a jury and penalty phase waiver and if he (Judge Ball)
ultimately determined guilt and had to proceed to a penalty
phase jury trial. In that context, Judge Ball said, “[T]hen the
question would be the timing of the selection of the penalty
phase jury.” These two passing comments — made in two
separate hearings that span more than 22 pages of transcript
and address topics ranging from telephone access to
scheduling — provide no meaningful information about how a
jury is selected or Morelos’s right to participate in that process.
Third, the court reaches back in time more than two years
to observe that “Morelos’s pretrial conduct and actions at trial
made clear his desire to have his guilt and penalty adjudicated
11
PEOPLE v. MORELOS
Liu, J., dissenting
expeditiously.” (Maj. opn., ante, at p. 46.) But Morelos’s interest
in pleading guilty and his desire to avoid issues on appeal shed
no light on what he understood about his right to have his guilt
and penalty determined by a jury.
Fourth, the court notes that during the hearing on
Morelos’s Faretta motion, Morelos testified that he understood
he had a right to a trial by jury, and he initialed his Faretta form
to indicate that he so understood. (Maj. opn., ante, at p. 46; see
Faretta v. California (1975) 433 U.S. 806.) At that hearing, the
trial court said, “You understand that you have a right to a
public, speedy trial and trial by a jury, you understand clearly
that right?” Morelos replied, “Yes, sir.” The preprinted form
signed by Morelos said the following: “I understand that I have
the right to a speedy and public trial and that is a right to a trial
by jury.” In addition, among the six pages of advisements
concerning the rights and responsibilities of a self-represented
litigant, Morelos initialed to indicate agreement with the
following: “I understand that if I am permitted to represent
myself, it will be necessary for me, WITHOUT THE
ASSISTANCE OF COUNSEL, to conduct my own trial
consisting of (but not limited to),” among other things,
“Impanelment of jury” and “Preparing a presenting to the Court
proposed jury instructions.” Morelos attached a list of 11 cases
with brief descriptions of how they relate to the right of self-
representation, but neither the listed cases nor Morelos’s brief
descriptions address the jury trial right. Again, none of these
facts provide any indication of what Morelos understood that
right to entail.
Fifth, today’s opinion speculates that Morelos must have
discussed the jury right with his former attorneys during their
two and a half years of representation, which ended less than a
12
PEOPLE v. MORELOS
Liu, J., dissenting
month before he waived his jury right. (Maj. opn., ante, at p. 47.)
The court refers to testimony from Morelos during the penalty
phase — after the trial court accepted his jury waiver — that he
“ ‘asked to waive jury trial’ ” and “ ‘[t]hey — meaning his
attorneys — ‘refused that.’ ” (Ibid.) Even if we credit this
testimony, which was not before the trial court at the time it
accepted his waiver, the record does not indicate — and it is
mere guesswork — what Morelos’s former attorneys told him
about the jury trial right.
Sixth, the court asserts that the prosecutor told the court
that he and Morelos had “multiple conversations concerning
Morelos’s desire to waive a jury.” (Maj. opn., ante, at p. 47.) The
record indicates that the prosecutor and Morelos spoke at least
three times in the weeks leading up to the waiver. On July 21,
1995, the prosecutor informed the court, “Mr. Morelos has
already spoken to me, given me communication today, and I
think his wish is to have a court trial.” On July 27, 1995, the
prosecutor said, “Well, I’ve talked to Mr. Morelos he called me
the day before yesterday in the afternoon hours. We talked for,
what, about half an hour or so on the telephone, maybe longer.
We discussed various issues. Mr. Morelos was interested in
pleading guilty to the guilt portion of the trial.” The prosecutor
then added, “Mr. Morelos and I have talked about this, and I
think we would be likely to waive jury on this case both as to the
penalty and guilt phase if that issue came up; is that correct,
Mr. Morelos?” Morelos affirmed, without elaboration. Then, at
a hearing on August 9, 1995, the prosecutor said, “What does
the file reflect on the time waiver? Mr. Morelos talked about it
with me on the telephone this morning.” That is all we know
about these conversations. The mere fact that the prosecutor
and Morelos discussed a jury waiver at various times provides
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PEOPLE v. MORELOS
Liu, J., dissenting
no basis to infer that the prosecutor adequately informed
Morelos of what a jury trial entails.
Finally, the court suggests that “Morelos’s jury waiver was
contemplated over an extended period of time.” (Maj. opn., ante,
at p. 48.) I do not understand how this sheds any light on what
Morelos knew about a jury trial.
III.
In sum, I agree with today’s opinion that Morelos was
advised that a jury is comprised of 12 individuals who make a
factual determination as to guilt and decide on the penalty. But
whatever else Morelos knew about the substance of the jury
right is loose conjecture. Where does the record in this case
“ ‘affirmatively show[] that [Morelos’s waiver was] voluntary
and intelligent under the totality of the circumstances’ ”?
(Collins, supra, 26 Cal.4th at p. 310, italics added.) The record
before us does not satisfy this standard. I fear that today’s
opinion, in concluding otherwise, once again lowers the bar for
a valid waiver. (Cf. Sivongxxay, supra, 3 Cal.5th at p. 214 (conc.
& dis. opn. of Liu, J.) [“We have never upheld a penalty phase
jury trial waiver on a record of advisement as thin as the one
here.”].) One is left to wonder what set of circumstances, in light
of the speculative inferences this court is willing to draw, could
fall below the minimum required to show a knowing and
intelligent waiver.
“For the average reader (or writer) of judicial opinions, it
is perhaps elementary what a jury is and how it functions in a
criminal trial. But we cannot assume such knowledge among
the general populace . . . .” (Daniels, supra, 3 Cal.5th at p. 1007
(conc. & dis. opn. of Liu, J.).) Many studies have shown the
troubling state of civic literacy in our nation, and “I would not
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PEOPLE v. MORELOS
Liu, J., dissenting
assume that despite these glaring gaps in civic literacy, the
average American nonetheless has a clear understanding of the
right to a jury trial.” (Id. at pp. 1007‒1008.) “The jury’s role in
a capital case is particularly likely to be unfamiliar. . . . The
jury’s normative function as sentencer in a capital trial is
unusual and especially unlikely to be a matter of common
understanding.” (Id. at pp. 1008‒1009.)
Because the record provides no indication that Morelos
waived a jury trial “ ‘ “ ‘with a full awareness both of the nature
of the right being abandoned and the consequences of the
decision to abandon it’ ” ’ ” (Collins, supra, 26 Cal.4th at p. 305),
the judgment cannot stand. I respectfully dissent.
LIU, J.
15
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Morelos
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S051968
Date Filed: August 11, 2022
__________________________________________________________
Court: Superior
County: Santa Clara
Judge: Daniel E. Creed
__________________________________________________________
Counsel:
Michael J. Hersek and Mary K. McComb, State Public Defenders,
under appointments by the Supreme Court, Kathleen M. Scheidel,
Assistant State Public Defender, Sara Theiss and Caroline P. Cincotta,
Deputy State Public Defenders, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra and Rob Bonta, Attorneys General,
Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys
General, Michael Farrell, Acting Chief Assistant Attorney General,
Ronald S. Matthias and James William Bilderback II, Assistant
Attorneys General, Glenn R. Pruden, Catherine A. Rivlin, Sarah J.
Farhat and Alice B. Lustre, Deputy Attorneys General, for Plaintiff
and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Caroline P. Cincotta
Deputy State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94607
(510) 267-3300
Catherine A. Rivlin
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3850